R v Trezise
[2018] ACTSC 135
•9 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Trezise |
Citation: | [2018] ACTSC 135 |
Hearing Date: | 9 May 2018 |
DecisionDate: | 9 May 2018 |
Before: | Mossop J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – acts of indecency – acts against children – historical offences – guilty plea – current age and health of offender considered – partially suspended sentence imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 81 Crimes (Sentencing) Act 2005 (ACT), s 37(2) |
Cases Cited: | Cranfield v The Queen [2018] ACTCA 3 R v Djenadija [2015] ACTSC 207 R v Stone [2016] ACTSC 231 |
Parties: | The Queen (Crown) Cyril Trezise (Offender) |
Representation: | Counsel R Christensen (Crown) J Lawton (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 213 of 2017 |
MOSSOP J:
Introduction
The offender, Cyril Trezise, has pleaded guilty to nine counts of indecent assault contrary to s 81 of the Crimes Act 1900 (ACT). The offences were committed between 1974 and 1977 when the offender had the position of leader of the youth group at the Wesley Uniting Church in Forrest.
The maximum penalty for each offence is five years imprisonment.
Facts
The facts were agreed and set out in a Statement of Facts which was tendered without objection. The offender was the leader of the youth group at the Wesley Uniting Church. He was also friends with other parents in the church. These two circumstances led him to have contact with the victims.
Counts 1 to 3 were committed on ND who was aged between nine and 13 years. The offences involve fondling the victim’s penis on the inside of his clothing. The first event occurred when ND and his brother, OD, attended the youth group. On one occasion, the offender took ND into an office located next to a gym at the church. He approached ND from behind and placed his hands down the front of his shorts and started playing with his penis (Count 1). He did so for a while, then stopped and the offender and ND went back to the gym to join the other kids. On another occasion, the offender and ND left the gym and went to the main hall. The offender asked ND to lie down on the floor. The offender laid down next to him and placed his arms around him and then placed his hand down the front of ND’s jeans. He moved his hands to the inside of ND’s underpants but did not touch his genitals (Count 2). The third incident occurred when ND’s family visited the offender’s family. ND was sitting at a table close to the kitchen. The offender came over and sat down next to him. He put his hand down ND’s pants and started to jiggle his penis (Count 3). This lasted for around 15 to 20 seconds. No one else who was present realised what had happened.
ND’s brother, OD, was the subject of two offences. He was, at the time, eight or nine years old. The offender took the boys in the youth group to Lake Burley Griffin to go fishing at night. The boys were spread out along the edge of the lake. OD was sitting on the concrete at the edge of the lake with his legs dangling off the edge. The offender came and sat down behind him with his legs straddling him from behind. The offender placed his hand down inside of OD’s pants and fondled his penis (Count 8). The offender then used his other hand to masturbate himself. OD could feel the movement on his back, as well as feel and hear the offender’s hot breath and moaning (Count 9). The whole incident took no longer than a minute.
The third series of offences were committed against a child of a different family, NO, who was nine or 10 years old. His family became friends with the offender and his family. On one occasion at the offender’s home, NO sat on the offender’s lap and the offender began touching him, cuddling him and kissing him. This included fondling NO’s genitals over his shorts (Count 4). On another visit to the offender’s home, NO was sitting on the offender’s lap and had his back to the offender. The offender put his hand down NO’s shorts and fondled and stroked his penis (Count 5). Other people were present at the house at the time when this occurred. On two separate occasions (Counts 6 and 7) when NO’s family and the offender’s family visited the Cotter River, the offender took NO for a walk with him away from the other family members and the offender proceeded to fondle and masturbate NO. He also kissed NO on the mouth and inserted his tongue into NO’s mouth.
Objective seriousness
The physical acts involved in this offence are at the lower end of the range for this offence, although the circumstances in which they occurred, involving gross breaches of trust and the exploitation of the youth and vulnerability of the victims, elevates the seriousness of the offending conduct. I treat those offences involving skin-to-skin contact as being more serious because they involve a greater degree of physical intrusion upon the victim.
Subjective circumstances
The pre-sentence report disclosed that the offender is 79 years old. He disclosed to the author of the pre-sentence report an occasion of sexual assault that he suffered as a child when he was between the age of 10 and 12 years, committed by a stranger at the house of a family friend.
He has limited contact with his family members. His wife, who suffers disability due to polio, lives in supported accommodation elsewhere. He described himself as separated, although he still sees his wife. He has four adult children. The current proceedings have significantly impacted upon his relationship with his family members, including the breakdown of his marriage. He has no contact with his youngest son and limited contact with his other children. He held various roles in the Australian Public Service dating back to 1954. He retired in 1997. He has limited contact with people outside his family.
He is no longer involved with the church. He enjoys researching family history and reads a lot of books.
He had a stroke in 2006 which resulted in the loss of vision in his right eye.
The author of the pre-sentence report noted that he had admitted guilt despite saying that he was unable to recall the events. He verbalised victim empathy by saying that he did not want to cause further harm to the victims by making them relive their experiences.
He was assessed as being a low level of risk of general reoffending and a moderate to high level risk of sexual reoffending.
A report of Assoc Prof Tuly Rosenfeld, a physician with a specialty in geriatric medicine, discloses that he currently suffers from background medical problems that include reduced glucose control (associated with insulin resistance), hypertension and elevated cholesterol. Investigations at the time of his stroke in 2006 were consistent with him having suffered previous strokes. Assoc Prof Rosenfeld said that the offender’s underlying brain disease will progress and lead to worsening cognition and ultimately dementing illness. Assoc Prof Rosenfeld’s report indicates that the median life expectancy of a 79 year old Australian male was 9.85 years, although the medical conditions from which the offender suffers are risk factors which predispose him to a reduced life expectancy. His age, medical conditions and loss of vision, all make it more challenging for him to live in a prison than for a younger person.
Criminal history
The only entry on his criminal history is for a single count of indecent assault on a male person. The offender had faced five counts of conduct similar to that in the present case, alleged to have occurred at a Methodist Church youth camp in Victoria in 1975 or 1976. He appears to have been dealt with by some form of good behaviour order.
Plea of guilty
The offender pleaded guilty after the matter was committed for trial when a pre-trial application had been listed for the second time. The decision in Cranfield v The Queen [2018] ACTCA 3 indicates that the appropriate discount upon a custodial sentence for a plea after committal and before a trial date has been set will be 10-15 per cent. In the present case, the plea was after the trial date had been set and hence at a point where, in the usual course of things, the victims of the offence would have been notified of that date. The plea was indicated to the Director of Public Prosecutions three months prior to the date listed for the trial and the plea of guilty was formally entered two months prior to the trial. I accept the submission of counsel for the accused that the discount should be 15 per cent. In Cranfieldv The Queen, a plea a week before the trial in the face of a very strong Crown case was said by the Court of Appeal to warrant a discount of 10 per cent. In this case, the plea was somewhat earlier and the Crown case for such historical offences was unlikely to be as strong as that which existed in Cranfield v The Queen.
Time in custody
The offender has not spent any time in custody in relation to the offences.
Consideration
The offences are objectively serious. Although the acts in question were at the lower end of the spectrum for acts of indecency, they occurred in circumstances which involved a gross breach of trust. Then, as now, parents allow their children to participate in community organisations trusting that they will be decently cared for by those who are charged with running the activities that those community organisations provide. Not only was it a gross breach of the trust placed in the offender by the parents of the children, but it was obviously a terrible exploitation of the youth and vulnerability of these children. The offences therefore involved an abuse of the obvious power imbalance that existed. The acts were committed purely to satisfy the offenders own sexual interest and gratification.
The conduct formed part of a course of conduct in relation to the individual victims and across all offences. They involve repeated acts, against multiple victims, over a period of years. They were clearly not isolated incidents.
Whilst the impacts of child sexual abuse will differ from victim to victim, for many if not most victims, such abuse at the ages of the victims in the present case can have a profound and lasting impact. The trauma experienced is deep and complex, and will give rise to a range of effects over their whole life. In the present case, the variability of the impact upon the victims is illustrated by the terms of the victim impact statements which were tendered on the sentencing. One of the victims, NO, said he had his innocence taken away too early and lost the trust that he should have had in his parents which has been long lasting. His parents in turn were devastated by the burden of guilt that they bore following NO’s disclosure to them of what had occurred. The disclosure of the offending conduct to his parents only occurred when he was in his first year of university. He was fortunate enough to record that the events have not had a major psychological trauma or precipitate any dangerous or unsocial behaviour. He recalled however:
The insidious nature of the activity, as it became steadily worse, is a terrible imposition on [a] young child – it was calculated and planned to achieve pleasure for an adult at the expense of an innocent child. It is abuse, it is assault, it is one sided. The powerless has no capacity to question, or challenge or self-preserve. This entrapment of a child is most egregious.
The second victim, ND, was clearly more greatly affected in the long-term by the events that occurred. It affected his capacity to form physical and emotional intimacy. It led him to become involved in drugs and alcohol to the point where he was suicidal. While he was able to recover from this, the process of making a complaint to police was re‑traumatising. He recorded:
I am sad that Cyril Tresize, a leader in our otherwise happy and spiritual Christian environment, betrayed our parents trust.
He destroyed the innocence of my brother and myself. He brought guilt to my elderly father who felt he had failed us. We trusted Cyril and he abused us.
The other victim, OD, did not prepare a victim impact statement. However, consistently with what I have said, the nature of this abuse is such that it will usually have long-term and complex consequences for the victims.
The offender has demonstrated some remorse both by his plea of guilty and by the absence of denials when he was confronted with the allegations. He did cooperate with police and participated in a recorded interview.
Three cases were provided in order to provide information about the sentencing practice of the Court. Each involve multiple offences. Some of the offences were, as counsel for the offender pointed out, clearly more serious than the conduct of the present case. I will refer only to those aspects of the offences which are of a similar degree of seriousness to the conduct in the present case. I will also refer to the sentences prior to any discount on account of a plea of guilty.
In R v Scheeren [2014] ACTSC 272 the offender faced 11 counts of indecent assault and one count of buggery. The offender had come into contact with the victim because he was a scout leader. He was aged 23 years at the time of the offending. He abused the victim in his shoe shop. The offences occurred during the years 1979-1980 when the victim was 11 years old. At the time of sentencing the offender was 58 years old. One of the acts of indecency involved pushing his erect penis against the victims back. I infer that the offender remained clothed. The starting point for the sentence was eight months imprisonment. Another offence was fondling the victim’s erect penis after having removed his pants. The starting point for this sentence was 12 months imprisonment. The other offences were clearly more serious than those in the present case. The 12 charges led to a total effective sentence of eight years imprisonment but a non-parole period of two years and eight months was set.
R v Djenadija [2015] ACTSC 207 involved offences committed between 1983 and 1985. The victim was aged between 10 and 12 years. The offender was aged between 43 and 46 years. At the time of sentencing the offender was 75 years old and had no relevant prior convictions. He was found guilty of four offences by a jury. Two of the offences involved pushing the victim’s legs apart, lying on top of her and simulating sexual intercourse at a time when both were fully clothed. He was sentenced to 13 months imprisonment on each such charge. Another offence involved the offender rubbing the victim’s breast over her clothing and saying “Do you like this?” He was sentenced to six months imprisonment. By reason of concurrency, the overall sentence imposed for the four offences was one year and 11 months and the offender was required to serve four months prior to release pursuant to a good behaviour order.
R v Stone [2016] ACTSC 231 involved seven counts of indecent assault. The offender had been found guilty after a trial by a jury. The offender had met the victim through friends he had met at a Lutheran Church. The offender was 73 years old at the time of sentencing and had convictions for subsequent indecent assaults on males. One group of offences occurred in 1975. The offender and his family came over to the victim’s house for a “get‑together”. The victim went to bed and the offender came into the victim’s bedroom and fondled his penis. On this charge he was given a sentence of 13 months imprisonment. Another offence, committed shortly afterwards, involved further fondling of the victim’s penis. A sentence of 13 months imprisonment was imposed. A second set of offences occurred in 1977 when the victim’s family had come to the offender’s house for dinner. The victim went to sleep in the master bedroom and the offender went in and stroked the victims back and legs before fondling his penis under his underpants. He was sentenced to 13 months imprisonment. Later that night he returned and again rubbed the victim’s back, legs and genitals. He was given a sentence of 13 months imprisonment. The sentences were made wholly or partially concurrent. The overall sentence that was imposed was three years and nine months, and a period of nine months was required to be served by full-time imprisonment prior to the sentence being suspended.
These sentences demonstrate that this Court has imposed significant custodial sentences to reflect the gravity of the offending conduct, but exercised a significant degree of leniency in relation to persons otherwise of good character where there has been a significant delay in prosecuting the offences and, in the case of R v Stone and R v Djenadija, the offender was quite elderly at the time of sentence.
To the extent that information may be available, the Court is required to consider sentencing practice applicable for crimes of this nature at the time they were committed. This was an issue addressed in each of the cases to which I have referred. As those cases recognise, it is difficult, if not impossible, to identify a sentencing pattern for offences in the 1970s. The approach I have taken is to look at the sentences that this Court has recently imposed in relation to such historical offences.
There is no doubt there was a significant delay in these charges coming before the Court. That is no criticism of anybody. It is simply a fact. That delay is relevant because the position is now that the offender is in his old age and has declining health. Not only is a sentence of full-time imprisonment a greater burden for an old person in declining health, but it is also significant that any period of imprisonment will be a more significant portion of the remaining life of the offender than if he had been sentenced at a date closer to his offending conduct. I have taken into account the offender’s age and declining health as that is clearly a relevant consideration in sentencing. However, his health conditions are not such as to demonstrate that, having regard to the obligation of ACT Corrective Services to provide appropriate treatment for his health conditions, full-time imprisonment would have a significant adverse effect upon his health: R v Djenadija at [26].
I am not satisfied that a fully suspended sentence is appropriate having regard to the gravity of the offending conduct. I do not consider that a fully suspended sentence would adequately satisfy the sentencing purposes of denunciation and general deterrence. Whilst I have taken into account the age and health condition of the offender, that is not sufficient to warrant the full suspension of the sentences. Leniency will be extended to him on account of his age and health by introducing a significant degree of concurrency between the sentences and imposing only a short period of full-time detention before the sentence is suspended.
The overall sentence that I will impose in the orders I am about to make is three years, two months and six days. The sentence will be suspended after six months.
Orders
The orders of the Court are:
1. On Count 1 (CC2017/4126), the offender is sentenced to 10 months and six days imprisonment commencing from 9 May 2018 and expiring on 14 March 2019.
2. On Count 2 (CC2017/4127), the offender is sentenced to five months and two days imprisonment commencing from 13 January 2019 and expiring on 14 June 2019.
3. On Count 3 (CC2017/4128), the offender is sentenced to 10 months and five days imprisonment commencing from 10 November 2018 and expiring on 14 September 2019.
4. On Count 4 (CC2017/4129), the offender is sentenced to five months and two days imprisonment commencing from 13 September 2019 and expiring on 14 February 2020.
5. On Count 5 (CC2017/4130), the offender is sentenced to 10 months and six days imprisonment commencing from 9 July 2019 and expiring on 14 May 2020.
6. On Count 6 (CC2017/4131), the offender is sentenced to 11 months and one day imprisonment commencing from 14 September 2019 and expiring on 14 August 2020.
7. On Count 7 (CC2017/4132), the offender is sentenced to 11 months and one day imprisonment commencing from 14 December 2019 and expiring on 14 November 2020.
8. On Count 8 (CC2017/4133), the offender is sentenced to 10 months and six days imprisonment commencing from 9 September 2020 and expiring on 14 July 2021.
9. On Count 9 (CC2017/4134), the offender is sentenced to five months and two days imprisonment commencing from 9 September 2020 and expiring on 10 February 2021.
10. The sentence on Count 1 is suspended on 8 November 2018 and each of the other sentences is wholly suspended upon the offender entering into an undertaking to be of good behaviour from that date for a period of three years.
Following oral delivery of these reasons it was drawn to my attention that although I had indicated the percentage discount, which I applied by reason of the pleas of guilty and the sentences of imprisonment obviously reflected the application of a percentage reduction to round figures, I had failed to comply with s 37(2) of the Crimes (Sentencing) Act 2005 by failing to state the penalty I would otherwise have imposed. But for the pleas of guilty, those penalties would have been: Count 1, 12 months; Count 2, six months; Count 3, 12 months; Count 4, six months; Count 5, 12 months; Count 6, 13 months; Count 7, 13 months; Count 8, 12 months; Count 9, 6 months.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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