R v Stone
[2016] ACTSC 231
•4 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stone |
Citation: | [2016] ACTSC 231 |
Hearing Dates: | 3 June, 8 July 2016 |
DecisionDate: | 4 August 2016 |
Before: | Burns J |
Decision: | See [30]-[38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular offences – offences against the person – sexual offences – indecent assault on a male – guilty after trial by jury – previous conviction for same offence – significant delay in reporting – offender’s age and ill health relevant factor – offender has rehabilitated himself since offences – underlying psychological considerations – sentenced to a term of imprisonment – balance suspended – Good Behaviour Order. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 33 |
Cases Cited: | R v Djenadija [2015] ACTSC 207 |
Parties: | The Queen (Crown) Stuart Anzac Stone (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 79 of 2015 |
BURNS J:
Stuart Stone, you appear before me today for sentence with respect to seven counts of indecent assault on a male. You were found guilty of these offences on 3 March 2016 after a trial by a jury.
The facts
In about the mid 1970s, you and your young family attended a Lutheran Church where you met the victim who was the son of friends that you met through that church. The families socialised and would go to each other’s houses and play cards. On most of those occasions after the children had gone to bed, you would check on the children while the adults were socialising. It was during those occasions that you molested the victim.
The offending is broken up into two separate incidents. Counts 1 to 3 make up the first incident. On a night in about 1975, the victim who was then about seven years of age and in year 2 at school, was at home in Farrer lying in his bed. You and your family had come over for a “get-together” and the victim had said goodnight to the adults who were in the living area. At some point, you came into the victim’s bedroom and said you were coming in for a chat and started rubbing his back. He felt uncomfortable. You then started to move your hand to the victim’s genitals and bottom and fondled his penis (Count 2). The victim thought he may have tensed because you were trying to relax him by telling him not to worry and that everything was okay. A short time later, you rolled the victim onto his back and pulled down his pyjama pants and put his erect penis in your mouth and performed oral sex (Count 3). While this was happening, the victim felt your hand brushing against him and thought that you were masturbating yourself. After a short period of time, you adjusted your pants or zipper and left the room. As you left, you told the victim that everything was okay and that it was to be a secret between the two of you. Sometime later, you went back into the victim’s room and started to rub his back before fondling his penis (Count 1).
The second occasion occurred in about late 1977. At that time, the victim’s family including the victim who was then about nine years of age went to your house in Red Hill for dinner. At some point during the night, the victim went to sleep in the master bedroom. A short time later, you went into the bedroom and asked if he was okay. You then stroked the victim’s back and legs before fondling his penis under his underpants (Count 4). At some point, you rolled the victim onto his back and pulled down the covers and the victim’s underpants and put his penis in your mouth and performed oral sex (Count 5). While this was happening, the victim heard you undo your zipper and heard you masturbate yourself. After a period of time, you stopped and said something reassuring to the victim before leaving the room. Sometime later that night, you came back into the bedroom and again rubbed the victim’s back, legs and genitals (Count 7). While the victim was lying on his side, you pulled his underpants down and inserted your penis into his bottom area. He felt pressure, however, there was no penetration of his anus (Count 9). You subsequently left the room.
The maximum penalty applicable at the time of these offences for an offence of indecent assault on a male was five years imprisonment. The maximum penalty provides a basis for comparison with the worst possible case and a yardstick in which to assess the objective seriousness of the present offences. I will return to the question of the objective seriousness of these offences in a moment.
Subjective features
I note that you have a prior criminal history. In 1996, you were convicted of five offences of indecent assault on a male in Victoria. Those offences occurred in the period from 1979 to 1981. A Pre-Sentence Report was prepared for the sentence hearing. I note that you are currently 73 years old. You told the author of the Report that these offences occurred due to stress in your life at the time, including work stress and isolation from extended family. You also told the author of the Report that you may have had too much to drink, although I note that there is little evidence to support the proposition that you were significantly affected by alcohol at the time of the commission of these offences. The Report does not note any significant issues relating to your childhood.
I note that according to the Report, you currently reside in Victoria with your wife of 47 years. You have two adult children. You reported undergoing psychiatric treatment for stress between 1980 and 1983. You said to the author of the Report that you have not committed any sexual offences after completing that treatment. You reported a number of ongoing medical conditions which I will refer to in greater detail in a moment. You also reported working in banking from 1960 to 1998. You then commenced working at a company where you continue to work until the present time. You reported no current issues in relation to drug and alcohol use but you said that at the time of the present offending, you binged on alcohol on weekends. The author of the Report assessed you as at medium risk of general reoffending. You are not for some reason assessed for risk of sexual reoffending.
I will now turn to the question of your health. In that regard, I have a report from Dr Trevor Skinner, apparently a general practitioner, and dated 11 June 2016. Dr Skinner said that you suffer from lymphoma, a form of cancer, which is currently in remission. You also suffer from chronic low back pain, mild asthma and an abnormal widening of parts of your airway which make you prone to recurrent lung infections requiring antibiotics. You also require monthly intravenous injection of antibodies. While your condition is currently stable, it was Dr Skinner’s opinion that a sentence of imprisonment would be stressful particularly because of your age and would make you more likely to succumb to serious and possibly life-threatening infections such as pneumonia. I note that Dr Skinner, whilst he said that a sentence of imprisonment would make it more likely that you would succumb to such infections, did not give any indication as to precisely how likely that would be.
There was also a report from Dr Debra Bennett, a clinical psychologist, dated 11 May 2016. Her report sets out a comprehensive personal history, which I will not refer to here, mostly as provided by you to her. She considered you to be a regressed child molester, that is someone who has turned to available children as a sexual substitute in times of isolation or stress. In her opinion you would not be considered to be a preferential paedophile. She considered you to be at low risk of sexual reoffending. Whilst you demonstrated only moderate empathy for your victim and you also demonstrated substantial denial, those in her opinion were not factors that are correlated with recidivism. She described you as having minimal insight into your offending. She believed that it was feelings of profound shame that prevent you from acknowledging that your conduct was sexual in nature. She stated:
I suggest that, Mr Stone’s advanced age, his health challenges, his feelings of shame and his strong relationship with his wife and children are a potent combination of protective factors. Nevertheless, the most compelling indicator of “low” risk level is the fact that he has not reoffended since he was confronted with his offending behaviour over 35 years ago.
I also have a report from Dr David Speakman, the Chief Medical Officer at the Peter MacCallum Cancer Centre in Victoria. Dr Speakman says that you are a patient at that centre where you have been treated for lymphoma, but you are now under his care for management of the suppression of your immune system associated with recurrent infections following treatment of your cancer, which is now in remission. He said that you were first seen at the centre in September 2010 with a 12 month history of left eye swelling and irritation. A CT scan showed a lump in your left eye socket and a biopsy confirmed lymphoma.
You then had a PET scan demonstrating multiple lumps in your liver and lymphoma infiltrating your spleen and a lymph node in the abdomen. You had a melanoma removed from your neck in 2007 and there were concerns that the liver lumps were the spread of melanoma but a biopsy from one of the lumps also showed lymphoma. You were therefore diagnosed with advanced Stage 4 lymphoma. You were treated with chemotherapy which commenced in October 2010. You completed four cycles of treatment given monthly. Your treatment was complicated by a viral skin infection, nausea and vomiting.
After two cycles of chemotherapy, a repeat PET scan demonstrated that you were in remission from lymphoma. Following completion of chemotherapy, an antibody was continued as maintenance treatment from March 2011 until December 2012. During that period, you had several respiratory tract infections. You developed pneumonia in March 2013 and you were referred to a respiratory physician. A CT scan of your chest showed lung damage. The chemotherapy and the antibody treatment resulted in a suppression of your immune system with low levels of antibodies needing to fight infections. The combination of immune suppression and lung damage has made you very susceptible to chest infections and you have required multiple courses of antibiotics over the past two years for those infections.
I also have a letter from Dr David Vivian dated 11 May 2015 which says that you have a long history of back and hip pain and general pain persists. X-rays have shown severe degenerative arthritis in the lumbar spine and inflammation of the right sacroiliac joint. Your capacity to sit or stand for anything more than short periods, to bend, lift and perform other mild manual chores is significantly restricted. Dr Vivian noted that you may need further interventions and possibly surgical treatment in the future.
I take into account the contents of a testimonial from Alan Ulrich dated 26 June 2016. He and his wife knew you and your wife in the early to mid 1970s when you were both living in Canberra. Subsequently they moved away from Canberra but there has been continuing contact of an intermittent type between their family and yours since that time. He spoke of the high regard that his family had for you. He also spoke of you having spoken to him in the 1970s of the fact that you were anxious about work and the need to be working long hours, having arrived from interstate leaving family and friends behind in South Australia. He spoke of your concern for your wife and your new child in the environment in Canberra without a support base that you had previously enjoyed in Adelaide. He said that your wife often came to visit them with your young child while she waited for you to finish work long after normal closing time. He also recalled reference being made in the early days of you being concerned for your future in the bank. He concluded by saying that they know that you are mortified by what has occurred in the past and you are extremely remorseful for your actions. He said that you have sought medical help over a long period to assist in rectifying the flaw in your mental state.
Consideration
It is clear by any measure that the present offences are objectively serious. In assessing the objective seriousness of these offences, I am required by s 33 of the Crimes (Sentencing) Act 2005 (ACT) to consider a number of matters. I must consider the nature and circumstances of the offences. I am satisfied that you deliberately set out to molest the victim on the occasions that the jury found you had committed these offences. One of the incidents occurred whilst the complainant was in his own home where he was entitled to feel safe.
Another factor that I am required to take into account is whether the offence forms part of a course of conduct. The evidence before me establishes that these offences occurred repeatedly over a two to three year period and that they were not isolated offences. I must take into account the personal circumstances of any victim of the offence as was known to you. It was quite clear, of course, to you that the victim was a vulnerable child being then only seven to nine years of age when these offences occurred.
I must take into account the effect of the offence on the victim. In that regard, a victim impact statement has been tendered. The offences had a significant ongoing effect on the victim. In his victim impact statement, he spoke of the profound effect your offending has had on him and how he found it difficult to trust other people and did not want anyone too close to his own children. He also described a life of thoughts and occasions when he wanted to end it all. It is not surprising that these offences had a very significant effect upon the victim, particularly bearing in mind his age. It is quite common that offences of this nature have an ongoing effect upon their victims and indeed often stay with the victims for the rest of their lives.
I must take into account whether you were in a position of trust or authority when these offences were committed. You were a close family friend of the family of the victim. You were someone that the victim and his parents trusted. Indeed it was only because of the trust that was reposed in you by the victim’s family that you had access to the victim. I am satisfied that these offences involve a gross breach of that trust.
I must take into account the reason or reasons why you committed these offences. The Crown submitted that the only inference which should be made is that you committed these offences for your own sexual gratification. I accept that these offences were committed for a sexual purpose but in considering the significance of that, I need to consider the report of Dr Bennett. Whilst the conduct was clearly sexual, there were underlying psychological considerations not amounting to mental illness or impairment which give context to the offending and assist in assessing the risk of reoffending and I take those matters into account. I am also required to take into account current sentencing practice.
I am satisfied that there is minimal risk of reoffending and that you have, as your counsel submitted, effectively rehabilitated yourself over the last 30 odd years. I am also satisfied that you have poor physical health, which will make imprisonment more burdensome upon you than upon somebody who did not suffer from the same physical health conditions.
You, of course, did not plead guilty to any of these charges. That was your right. However, that means that you are not entitled to the discount you would have been entitled to had you pleaded guilty to these charges. I accept that you have shown some acceptance of your responsibility in these matters in the pretext call which was undertaken by the victim and also in your discussions with the author of the Pre-Sentence Report and with Dr Bennett.
There has been a significant delay in these charges coming before the court. The offences occurred in the period from 1975 to 1977. Proceedings, however, were not commenced until the end of 2014. This is not intended to be a criticism of the victim or indeed of anybody. It is simply stating a fact. It is often the case that victims of this type of offending, particularly victims who were young children at the time of the offences, will be confused about what has happened and will also feel ashamed and in some cases responsible. There are many reasons why such a victim will not immediately come forward but delay is still a relevant circumstance that I must take into consideration. This case has many similarities to that of R v Djenadija [2015] ACTSC 207 (R v Djenadija ) where Murrell CJ said:
When considered together with the offender’s old age and associated ill-health, the delay is relevant to sentencing because the offender now confronts the possibility of full-time imprisonment as a man in poor health and in his declining years.
I accept that you have a need for ongoing medical treatment. There is no evidence before me that this cannot be provided in custody but there are inevitable restrictions placed upon your access to medical treatment in custody and particularly access to those physicians and institutions which have an intimate knowledge of your medical conditions and history. Some loss of continuity of care is likely if you are sentenced to full-time imprisonment.
To the extent that the information may be available, I am also required to consider the sentencing pattern applicable for crimes of this nature at the time that they were committed, that is in the mid 1970s. As the Chief Justice acknowledged in R v Djenadija, it is extremely difficult if not impossible to identify a sentencing pattern for such offences in the 1970s. However, it may be accepted that generally sentencing patterns for child sex offences in that era were more lenient than current patterns partly because of the much lower maximum penalties that then applied.
The Crown submitted that the objective features in Counts 1, 2, 4 and 7 which involved you fondling the victim’s genitalia should be assessed at mid range. I would in general agree but I would perhaps say at the lower end of the mid range.
The Crown further submitted that Counts 3 and 5 which involved you performing oral sex on the victim should be assessed as worst category cases. In my opinion, this is not correct. The offences were serious and I accept in the upper range of such offences, but I would not describe them as being in the worst possible category.
The Crown further submitted that Count 9, which involved you pulling the victim’s pants down and trying to insert your penis into his anus, should be assessed as a worst category case. I must remember that you were not convicted of any offence of buggery or indeed attempted buggery with respect to that offence. You were convicted of an offence of indecent assault. Certainly that offence is a serious form of that particular type of offending and is again in the upper range.
Objectively these offences call for a sentence of imprisonment. Subjective circumstances relevant to you, and in particular your age and ill health, militate against a lengthy term of full-time imprisonment. The conundrum in the present sentencing exercise is to impose a sentence that recognises the objective seriousness of this offending and recognises the need to deter others from committing this type of offence but at the same time also gives recognition to your subsequent rehabilitation and your present age and ill health.
As I have already noted, your offending falls into two distinct chronological incidents. Counts 1, 2 and 3 are the first incident and Counts 4, 5, 7 and 9 are the second. A significant degree of concurrency is warranted with respect to the sentences for these offences both in terms of the fact that there are a number of common elements but also because of the principle of totality. However, some degree of accumulation is also warranted. In my opinion, the requirements of sentencing in this matter are best addressed by imposing a sentence of imprisonment, a short period of which must be served by way of full-time imprisonment and the balance of which is to be served by way of a suspended term of imprisonment.
Sentence
Mr Stone, with respect to Count 1, you are convicted and sentenced to 13 months imprisonment commencing today, 4 August 2016 and expiring on 3 September 2017.
With respect to Count 2, you will be convicted and sentenced to 13 months imprisonment commencing today, 4 August 2016 and expiring on 3 September 2017.
With respect to Count 3, you are convicted and sentenced to two years imprisonment commencing today, 4 August 2016 and expiring on 3 August 2018.
With respect to Count 4, you are convicted and sentenced to 13 months imprisonment commencing on 4 August 2017 and expiring on 3 September 2018.
With respect to Count 5, you are convicted and sentenced to two years imprisonment commencing on 4 August 2017 and expiring on 3 August 2019.
With respect to Count 7, you are convicted and sentenced to 13 months imprisonment commencing on 4 August 2017 and expiring on 3 September 2018.
With respect to Count 9, you are convicted and sentenced to two years and nine months imprisonment commencing on 4 August 2017 and expiring on 3 May 2020.
There is therefore an aggregate sentence of three years and nine months imprisonment commencing today, 4 August 2016 and expiring on 3 May 2020. I order that the period commencing today, 4 August 2016 and expiring on 3 May 2017 be served by way of full-time imprisonment. That is a period of nine months, with the balance suspended.
There will be Good Behaviour Orders for a period of three years from 4 May 2017 with a condition that you are to accept the supervision of ACT Corrective Services or its delegate and obey all reasonable directions of such persons for that period of three years or such lesser period as deemed appropriate by your supervising officer.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: D Scuteri Date: 18 August 2016 |
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