R v Sq
[2020] ACTSC 20
•5 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SQ |
Citation: | [2020] ACTSC 20 |
Hearing Date(s): | 5 February 2020 |
DecisionDate: | 5 February 2020 |
Before: | Murrell CJ |
Decision: | Sentenced to a total of six years’ imprisonment with a nonparole period of three years. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Act of indecency without consent – Complainants with intellectual disability – Abuse of position of authority |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60 Crimes (Sentencing) Act 2005 (ACT) ss 33, 35(2) |
Cases Cited: | R v Hoyle (No 2) [2017] ACTSC 175 R v NC [2017] ACTSC 206 Singh v The Queen [2015] ACTCA 65 |
Parties: | The Queen (Crown) SQ (Offender) |
Representation: | Counsel S Jerome (Crown) S Littlemore QC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich (Offender) | |
File Number(s): | SCC 315 of 2019 |
MURRELL CJ
Introduction
The offender pleaded guilty to three counts of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT) (Crimes Act), and two counts of committing an act of indecency, contrary to s 60 of the Crimes Act.
The maximum penalty for the offence of sexual intercourse without consent is 12 years’ imprisonment. The maximum penalty for the offence of committing an act of indecency without consent is seven years’ imprisonment.
On 26 November 2019, at the fourth mention in the Magistrates Court, the offender pleaded guilty to the offences, and the matters were committed to this Court for sentence. The pleas of guilty at such an early stage were valuable. Having regard to the considerations in s 35(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I will allow a sentence discount of 25 per cent.
The offender has been in custody since his arrest on 31 July 2019. That will be the commencement date of the sentences.
Facts
The offences occurred between 1 February and 31 March 2019 and relate to five separate incidents.
The complainants are twins, KU and BU. The offender had been in a relationship with the complainants’ mother since 2003. In 2012, the complainants and their younger sister, who had been living with their father, moved back to live with their mother, who shared a home with the offender.
The complainants were 29 years old at the time of the offences. Together with their younger sister, they suffer from a rare genetic disorder that is often associated with significant developmental delay. According to a psychologist, Dr Boer, the complainants are cognitively impaired, having a full-scale IQ in the first percentile and a “mental age” similar to that of an 11 or 12-year-old child. On the other hand, the complainants have relatively strong perceptual reasoning. Dr Boer diagnosed intellectual disability of mild severity.
The offences occurred in the “sunroom” of the residence occupied by the complainants and the offender, which, at the time of the offences, was used as a bedroom by the offender and the complainants’ mother. There was a double bed in the room.
Offences relating to KU
Count 1 – Sexual intercourse without consent
The offender was at home with KU. The offender pulled KU by her hand into the sunroom and closed the door. He told her to remove her clothes. KU said, “[SQ], can you stop doing it?”. However, the offender proceeded to remove her clothes. He touched her inner thigh and digitally penetrated her vagina.
KU told him to stop, but the offender removed his clothes and told the complainant to move to the other side of the bed and get onto her knees. He then penetrated her anus with his penis and motioned back and forth. Twice, KU told him to stop but he replied, “just a little longer”. On the third occasion that she told him to stop, he did so.
He told KU that she should not tell her mother.
Count 2 – Act of indecency without consent
The offender was at home alone with KU. Around midday, he took KU to the sunroom and closed the door. The offender told KU to remove her clothes, but she did not comply. The offender used his right hand to rub the complainant on her leg, outside her trousers. He put his hands underneath her shirt and rubbed her breasts. He then put his hand down her pants and rubbed her genital area. KU told him to stop or she would tell her mother. The offender said that he did not want to get into trouble and told KU to put her clothes on so that her mother would not find out.
Later that day, KU disclosed to her mother that the offender had told her to remove her clothes.
Count 3 – Act of indecency without consent
The offender was at home with KU and BU, who were watching television. Their mother was absent. The offender told KU to hold his hand. He led her by the hand to the sunroom and closed the door. The offender stood over KU and placed his left hand down her pants. He started to rub her genital area. KU told him to stop but he continued to rub her. She repeated her request for him to stop and he complied.
The offender told KU that she should not tell anyone about the events. However, when her mother returned to the house, KU reported the events.
Offences relating to BU
Count 4 – Sexual intercourse without consent
The offender was home with BU and KU. Their mother was absent. The offender asked BU to go to the sunroom. While BU stood at the door, the offender showed her a vibrator and told her to insert it into her vagina to help her relax. The offender told her to remove her clothing and she did so. The offender removed his clothing. He told BU to lie on the bed and he climbed on top of her. The offender tried to move her onto her side or stomach to allow for easier penetration of her anus. He asked BU whether she liked it and she replied that she did not. The offender penetrated her anus and motioned back and forth. He also penetrated her vagina with his penis. BU was frightened throughout the incident.
The offender told BU that she should not tell her mother and that if she disclosed anything to her mother, she would no longer be able to reside in the house.
Count 5 – Sexual intercourse without consent
The offender was home alone with BU watching television. He directed her to go to the sunroom. She replied that she did not want to do it anymore. The offender said that it was okay but that she was still required to go into the sunroom. BU complied. The offender told her to remove her clothing and lie on the bed. She did so. The offender climbed on top of her and engaged in anal and vaginal intercourse.
The offences were detected when BU confided in her mother. When disclosing the offences to her mother, BU appeared to be afraid.
Initially, when confronted, the offender denied the offences, but later he conceded to the complainants' mother that he had touched the complainants.
In 2019, the offender voluntarily began to see a psychologist. On 25 July 2019, the psychologist advised police that the offender had disclosed that he had tickled his adult stepdaughters with sexual intent.
On 31 July 2019, after BU and KU had participated in a police evidence-in-chief interview, the offender was arrested. He did not seek bail and he has been in custody since that date.
Objective seriousness
Objectively, the conduct was very serious. Each offence involved the offender opportunistically seeking sexual gratification by taking advantage of a vulnerable woman who was, effectively, in his sole care at the time of each offence and in relation to whom he was in a de facto parental position. He was well aware of the complainants' vulnerability. He repeatedly took advantage of their mother’s absence to commit offences against them. For these reasons, his position was—at least in a de facto sense—a position of authority or trust vis-à-vis the complainants. The incidents occurred in the complainants' home, a place where they should have been able to feel safe.
Count 1 involved two types of sexual intercourse of which the second (persistent anal penetration) was an objectively serious type of sexual intercourse. In the case of Count 2, the offence involved several different types of act of indecency, including rubbing of the complainant's genital area. Count 3 involved a relatively serious act of indecency, being the persistent rubbing of the complainant's genital area. Counts 4 and 5 involved two types of sexual intercourse (vaginal and anal intercourse), both of which were objectively serious types of sexual intercourse.
In the case of each offence, the complainant indicated that she objected to the conduct, but the offender persisted. Further, in the case of all offences, the offender told the complainant that she should not report the incident to her mother. In the case of Count 4, he went so far as to tell the complainant that, if she did disclose his misconduct, she would no longer be able to reside in the house, implying that she would be separated from her mother and siblings.
In addition to the fact that each complainant expressly objected to the conduct, indicating that she did not consent to it, Dr Boer opined that “it was reasonable to assume that neither of the twins had exercised or had the capacity to exercise consent to the sexual interactions allegedly perpetrated by [the offender]”.
On the other hand, there was no physical violence or cruelty associated with the offending conduct, nor were the complainants physically confined for an extended period, as has been the case in some of the very serious matters of this type that have come before the Court.
Further, the period of the offending conduct was, at most, two months—although, on the other hand, it ceased only because of disclosure to the complainants' mother. The offender has maintained that he thought that the complainants reciprocated his affection for them, although in light of the fact that they asked him to cease his activities, that seems to have been an unreasonable conclusion.
Victim impact
In relation to victim impact, I did not receive victim impact statements. However, I have information that assists me to assess the impact on the victims.
Dr Boer reported that the complainants had been “very reluctant” to discuss the offences and had refused to discuss the particulars of the conduct; they were apprehensive and distressed. They indicated that they “would like it if [the report] said that [the offender] was not allowed to come over to see them”, and expressed a desire to have a separate residence where the offender could not find them after he was released from custody. Many months after the incidents, indeed probably 12 months, they remain fearful of the offender.
Prior to the offences, neither complainant had experienced an intimate relationship to any extent. However, each understood that the offender's misconduct was wrong. Each complainant seems to have felt ashamed of her involvement—a common reaction of victims, even though they should feel no sense of blame or shame. It is difficult for any victim to come to terms with such misconduct and to appreciate the lack of fault on her own part, but such appreciation may be even more difficult in the case of a victim who is cognitively impaired.
Dr Boer referred to a depressive disorder that may be present in both victims, potentially attributable to the offences. He recommended that the complainants receive urgent psychological therapy to help alleviate the depressive hopelessness evidenced in their responses to his questions.
I have no doubt that the offending conduct has had a very serious impact on the victims, and I infer from the circumstances that it will probably have a significant impact throughout their lives.
Subjective features
The offender was 40 years old at the time of the offences. He has no prior criminal history.
He was born in Queensland and is the younger of two children. He lived in Hong Kong with his family for several years while the offender's father was posted there with the Australian Army. When the offender was about five years old, the family moved to Canberra. The offender told Dr Clout (a clinical psychologist who prepared a report concerning his circumstances) that when he and his brother were children, his mother was overprotective. He described a “poor” childhood relationship with his brother. He described an “okay” relationship with his mother, but a more difficult relationship with his father, whom he said was “regimented and impatient”. However, the offender now enjoys a close relationship with both parents as well as his brother, all of whom have supported him through the criminal proceedings and have visited him in custody.
The offender has had two long term relationships, the second of which was with the complainants’ mother.
The offender is a qualified automotive mechanic and worked in that field for some years, winning promotions and management roles. In 2006, he suffered a serious car accident in which he sustained neck, back, and head injuries. The long-term impact of the head injuries is unclear. After an extended period of rehabilitation, he returned to work, but since the car accident he has continued to suffer from chronic pain.
The offender told Dr Clout that his life had started to “spiral downwards” after the car accident, particularly as, in the period following the accident, he experienced a succession of disappointments in connection with employment. In 2016, he received a redundancy and, thereafter, he was unemployed for ten months. At that stage, the offender began to experience marked symptoms of depression and difficulties in his relationship with the complainants' mother. After his redundancy, his brother encouraged him to apply for government work. At the time of his arrest, he had an administrative role in an ACT Government agency.
The offender found it difficult to live with the complainants after they joined the household in 2012, and he felt that the complainants' mother prioritised their needs over his needs.
Since the offender's arrest, the complainants' mother has not spoken to him, and it would seem that the relationship is over.
The offender has described depressive incidents commencing in 2002, including suicidal ideation. Dr Clout opined that, since 2016, the offender has suffered from a persistent depressive disorder with intermittent major depressive episodes. She stated that, as at January 2020, he was suffering from a severe depressive episode. She considered that he would benefit from individual psychological therapy designed to address the disorder, and that pharmacological intervention should be considered. She also said that the offender would benefit from treatment that would enable him to gain insight into his symptoms and behaviours and develop coping strategies.
Dr Clout reported that the offender has “low empathy and insight, an impaired ability to understand and respond to the needs of others, excessive self-focus, a tendency towards interpersonal exploitation and enhancement of his own abilities”. She stated that those symptoms were commonly associated with a narcissistic personality disorder or an autism spectrum disorder and recommended that the offender be assessed for to determine whether he suffers from autism spectrum disorder; she considered there to be some indication that that was the case. Dr Clout also mentioned that the offender could have an attention deficit hyperactivity disorder.
Dr Clout considered that the offender's overall risk of general recidivism was high (as he had few environmental or personal resources and had pro-criminal attitudes), but that the risk of sexual reoffending was below average. She said that it was likely that his limited capacity for empathy, impaired ability to perceive and respond to the needs of others, and increased tendency to interpersonal exploitation had contributed to the offending behaviour.
Sensibly, the offender did not rely upon this evidence to support a submission that a psychological condition mitigated the degree of his criminal responsibility.
Dr Clout also said that, because of his severe depressive symptomatology, the offender was likely to find fulltime imprisonment more onerous than a person without his condition; his symptoms were likely to affect his ability to cope with the challenges and limitations of a custodial environment.
No specific submissions addressed this point, and I do not consider that the offender's difficulties in this regard differentiate him from many inmates.
The offender tendered letters from his parents and brother that spoke to the offender's general good character and attitude towards the offences. His parents stated that he had expressed shame “for what he's done to [the complainants'] immature minds and their future attitudes”. He was also sorry about the distress that he had caused to the complainants' mother and was experiencing self-loathing and disgust. He accepted that he should be punished.
His brother described his shock at hearing of the offences, as he would not have believed his brother to be capable of such conduct. He went on to say that “as much as I condemn [the offender's] behaviour I take solace that [he] has, at least to my knowledge, never denied his wrongdoing”, and that he believed that the offender was “deeply remorseful for his actions” and for the impact of his actions on the complainants as well as his own family.
The offender expressed guilt and remorse to Dr Clout, though, according to her, he was more focused on the consequences for himself rather than the consequences for others. She said that he presented with limited remorse and insight into his conduct.
The offender has expressed a willingness to engage in psychological treatment and specialist programs, including sex offender treatment programs offered at the Alexander Maconochie Centre, stating that he wants to “understand” his behaviour. His early interest in treatment is also apparent from the fact that he voluntarily engaged with a psychologist in 2019, prior to his arrest.
Comparable cases
The Court was referred to several cases that are somewhat comparable, for example R v NC [2017] ACTSC 206. The Crown provided a helpful table of cases, including R v Hoyle (No 2) [2017] ACTSC 175 and Singh v The Queen [2015] ACTCA 65. I have personal familiarity with some of those matters, having sat either on the relevant Court of Appeal or at first instance.
I have looked at the statistics on the ACT Sentencing Database. In relation to offences of sexual intercourse without consent, sentences of about three years’ imprisonment are not uncommon. In relation to offences of committing an act of indecency without consent, the sentences imposed are often six or 12 months' imprisonment, although the offence captures a wide range of acts and surrounding circumstances. I am well aware of the limits of statistical information, but I note that the statistics are consistent with the cases in the table provided by the Crown.
Sentencing considerations
I am required to consider the matters referred to in s 33 of the Sentencing Act, insofar as they are known and relevant. I believe that I have referred to the relevant matters. The circumstances of the offences—which entailed the repeated and serious abuse of the offender’s relationship with the complainants, were motivated by a desire for sexual gratification, and occurred in the home of the victims, who were vulnerable—call for a strong message of general deterrence. Further, accountability, denunciation, and recognition of harm to the victims are important sentencing purposes.
The offender's acknowledgement of the offending conduct (through his pleas of guilty and by seeking psychological assistance) and his remorse—albeit that he may not have demonstrated complete insight and his remorse might be considered to be less than fulsome—support the assessment that there is a reasonable chance of rehabilitation.
Largely based on the risk assessments of the experts, the Crown submitted that there were poor prospects of rehabilitation. I do not agree. First, I was not provided with detailed information that would assist me to determine the reliability of the assessments. More importantly, I consider that a person's past behaviour is the best indicator of their likely future conduct. At 41 years of age, the offender has no prior convictions of any type. His acknowledgement of wrongdoing, remorse and (albeit limited) insight support rehabilitation. I consider that the prospects of rehabilitation are reasonable.
There is a role for the sentencing purpose of personal deterrence. No doubt, incarceration will have a salutary impact upon him.
I am convinced, and the parties have not submitted otherwise, that the only appropriate penalty is one of fulltime imprisonment for a considerable period of time. As each offence involved a separate and serious incident, there should be significant accumulation of the sentences.
This sentencing exercise is the first time that the offender has been sentenced, let alone imprisoned. It is hard to predict the impact of the proceedings, the sentence, and other matters upon him. A relatively short nonparole period of 50 per cent of the total term will enable the parole authority to assess whether he is suitable for release at that stage or whether he should remain in custody for longer.
Sentences
I convict the offender and impose the following sentences.
(a)Count 1: sexual intercourse without consent (KU)—three years and nine months’ imprisonment, reduced to 34 months’ imprisonment, from 30 September 2020 to 29 July 2023.
(b)Count 2: act of indecency without consent (KU)—18 months’ imprisonment, reduced to 13 months’ imprisonment, from 31 July 2019 to 30 August 2020.
(c)Count 3: act of indecency without consent (KU)—18 months’ imprisonment, reduced to 13 months’ imprisonment, from 31 January 2020 to 28 February 2021.
(d)Count 4: sexual intercourse without consent (BU)—three years and nine months’ imprisonment, reduced to 34 months’ imprisonment, from 30 September 2021 to 29 July 2024.
(e)Count 5: sexual intercourse without consent (BU)—three years and nine months’ imprisonment, reduced to 34 months and one day’s imprisonment, from 30 September 2022 to 30 July 2025.
The total sentence will be six years’ imprisonment, from 31 July 2019 to 30 July 2025. I fix a nonparole period of three years, expiring on 30 July 2022.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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Amendments
17 February 2020 Paragraph [59](c) replace “31 July” with “31 January” and “27 February” with “28 February”.
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