R v UQ
[2018] ACTSC 301
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UQ |
Citation: | [2018] ACTSC 301 |
Hearing Date(s): | 30 October 2018 |
DecisionDate: | 30 October 2018 |
Before: | Elkaim J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – sexual intercourse without consent – sexual intercourse with lineal descendant – attempt sexual intercourse with lineal descendant – guilty verdicts after trial – no criminal history |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60, 61(2), 92D(1), 92J(1), 92K(1), 92L(1) and 347 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 |
Parties: | The Queen ( Crown) UQ ( Offender) |
Representation: | Counsel Mr J Hiscox ( Crown) Mr J Lawton ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Sharman Robertson Solicitors ( Offender) | |
File Number(s): | SCC 266 of 2017 |
ELKAIM J
On 16 July 2018, the offender was arraigned on an indictment containing 15 counts. He entered pleas of not guilty in respect of each count.
On 25 July 2018, the offender was found guilty of all counts except for Count 12.
The specific offences in respect of which the offender was convicted and their maximum penalties are as follows:
(a)Two offences of an act of indecency (CC 2017/5309; CC 2017/5311) (Counts 1 and 3), contrary to s 92J(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of five years’ imprisonment.
(b)One offence of an act of indecency (CC 2017/5312) (Count 4), contrary to s 60(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of five years’ imprisonment.
(c)One offence of sexual intercourse without consent (CC 2017/5310) (Count 2), contrary to s 92D(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 12 years’ imprisonment.
(d)One offence of sexual intercourse without consent (CC 2017/5313) (Count 5), contrary to s 54(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 12 years’ imprisonment.
(e)Two offences of sexual intercourse with stepchild (XO 2017/31244; XO 2017/31245) (Counts 6 and 7), contrary to s 92L(2) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 15 years’ imprisonment.
(f)Three offences of an act of indecency on a young person (XO 2017/31246; XO 2017/31247; XO 2017/31249) (Counts 8, 9 and 11), contrary to s 92K(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 12 years’ imprisonment.
(g)Two offences of sexual intercourse with lineal descendant (XO 2017/31248; XO 2017/31251) (Counts 10 and 13), contrary to s 92L(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 20 years’ imprisonment.
(h)One offence of act of an act of indecency on a young person (XO 2017/31252) (Count 14), contrary to s 61(2) of the Crimes Act 1900 (ACT), which carries a maximum penalty of 10 years’ imprisonment.
(i)One offence of attempt sexual intercourse with lineal descendant (XO 2018/31384) (Count 15), contrary to s 92L(1) of the Crimes Act 1900 (ACT) pursuant to s 347 of the Crimes Act 1900 (ACT), which carries a maximum penalty of 20 years’ imprisonment.
I am satisfied that the jury found, beyond reasonable doubt, the following facts leading to the verdicts of guilty.
The offences involve three complainants: KT, LT and BQ. KT and LT are the offender’s stepchildren. BQ is the offender’s daughter.
Count 1 involved the offender plying KT with a vodka and fruit drink and placing her hand on his penis.
Count 2 involved the offender following KT into the bedroom and inserting a finger or fingers into her vagina.
Count 3 involved the offender putting KT’s hand on his penis and making her masturbate him until he ejaculated.
Count 4 involved the offender masturbating himself in front of KT and forcing KT to touch his penis.
Count 5 occurred shortly after Count 4 and involved the offender inserting a finger or fingers into KT’s vagina.
Count 6 involved the offender plying LT with Sambuca and performing oral sex on him.
Count 7 occurred shortly after Count 6 and involved the offender performing oral sex on LT.
Count 8 involved the offender masturbating himself in front of BQ.
Count 9 involved the offender forcing BQ to masturbate him.
Count 10 involved the offender forcing BQ to masturbate him and perform oral sex on him.
Count 11 involved the offender forcing BQ to masturbate him.
Count 13 involved the offender forcing BQ to perform oral sex on him.
Count 14 involved the offender putting his hand on BQ’s pubic area and instructing her how to shave the area.
Count 15 involved the offender attempting to insert his penis into BQ’s vagina.
The offender was born in 1963 as the youngest of three siblings. His parents are now deceased. He left school when he was 14 years of age and has poor literary skills. He has worked in a variety of unskilled employments but also in some longer term jobs. He has run his own business dealing in sound and lighting in the entertainment industry. His last job was for 15 years.
The offender’s history includes issues with alcohol although that seems to have been some time ago. He has a long standing history of the use of cannabis but this has fallen away in recent years.
He has had two long relationships. The first produced two children. He has no contact with his children no doubt as a result of these offences. The offender’s current relationship has been in place for about 17 years. His partner still supports him and they blame his previous partner for the charges against him.
The offender does have a criminal record but it relates to matters many years ago and of a different type to the current offences. I do not regard it as relevant. A number of references were tendered on behalf of the offender. They describe a hard-working kind person at odds with the commission of these offences. His current partner clearly does not accept his guilt but she was correct in summing up the offences as “abhorrent beyond belief”.
The offender maintains his innocence and has apparently lodged an appeal. According to the Pre-Sentence Report “he accused all of the victims and his ex-wife of lying and colluding together, with the apparent motivation to obtain compensation”. He believes his ex-wife “orchestrated all of the accusations”. Clearly the jury disagreed by accepting the evidence of the complainants.
The complainants were all young people. They were made to perform, or they were subject to, sexual acts illustrative of a deviant sexual predator. They were taken advantage of for the benefit of the offender and he plainly has no remorse. Each act involved a breach of trust which would unquestionably have confused the victim and implanted the beginnings of psychological damage likely to last for many years if not for the whole of their lives.
The consequences of the offences are evident from the Victim Impact Statements. One of the victims stated:
Before all of this happened I was quiet, never angry, I was a child and care free. I didn’t have any worries. Compared to now I am always angry, I can’t cope with life and every day is a struggle. I have always had to prove that I have self-worth or that I am worthy of anything.
Later in her statement this victim expresses at least some hope for the future:
I feel like he has ruined my life. I feel like I have had no control over my life and my emotions. Now that he has been found guilty I feel like I may now be able to move on in a positive light and finally live my life the way I should have been able to all those years ago, happy, carefree and enjoying my life. I can take back control of my life for the first time.
Another victim stated:
Ever since coming forward, I feel better about myself but for years I felt like this was my fault and that it shouldn’t have happened. I was embarrassed about it and that made me not want to talk to anyone and to bottle it all up. I just didn’t want anyone to know what happened.
Although some of the offences were not apparently premeditated, I regard them all as having a degree of premeditation to the extent that while the accused may have taken advantage of a particular situation he had the premeditated notion of being willing to take advantage when an opportunity arose.
As far as objective seriousness is concerned, offences like these are always serious. Of course there are circumstances which could make them more serious, perhaps involving excessive violence, but nevertheless in my view offences against children, especially offences of sexual intercourse, are by definition objectively serious.
The offender submitted that I should take into account the delay in the proceedings being commenced. I have taken this into account in the non-parole period. I do not however take into account any suggestion of rehabilitation because there has not been reoffending. This is because the offender continues to deny the offences so there could not have been any rehabilitation. I do however note that the Pre-Sentence Report says that there is a medium to high risk of sexual reoffending. It states that he “would benefit from an intervention to treat his denial and his risk of sexual reoffending”. I accept that this assessment has to some degree been dictated by the continual denial of the offences.
Sentencing where there are so many counts involves taking care not to arrive at an overly long total sentence. On the other hand, the victims are entitled to assume that the offender has been specifically punished in relation to the offences against each of them. There must necessarily be a degree of concurrency and accumulation which, on its face may not be logical, but strives to balance punishment for individual offences with the principles of totality.
I must also take into account the principles and objects of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is not relevant because this offender must obviously be imprisoned. I note the offender has been in custody since 25 July 2018 which will be the starting point for his sentences.
I make the following orders:
(a)In respect of Count 1, act of indecency (CC 2017/5309), the offender is sentenced to 12 months’ imprisonment commencing on 25 July 2018 and ending on 24 July 2019.
(b)In respect of Count 2, sexual intercourse without consent (CC 2017/5310), the offender is sentenced to 5 years’ imprisonment commencing on 25 July 2018 and ending on 24 July 2023.
(c)In respect of Count 3, act of indecency (CC 2017/5311), the offender is sentenced to 3 years’ imprisonment commencing on 25 July 2021 and ending on 24 July 2024.
(d)In respect of Count 4, act of indecency (CC 2017/5312), the offender is sentenced to 3 years’ imprisonment commencing on 25 July 2021 and ending on 24 July 2024.
(e)In respect of Count 5, sexual intercourse without consent (CC 2017/5313), the offender is sentenced to 5 years’ imprisonment commencing on 25 July 2021 and ending on 24 July 2026.
(f)In respect of Count 6, sexual intercourse with stepchild (XO 2017/31244), the offender is sentenced to 6 years’ imprisonment commencing on 25 July 2021 and ending on 24 July 2027.
(g)In respect of Count 7, sexual intercourse with stepchild (XO 2017/31245), the offender is sentenced to 6 years’ imprisonment commencing on 25 July 2021 and ending on 24 July 2027.
(h)In respect of Count 8, act of indecency on a young person (XO 2017/31246), the offender is sentenced to 12 months’ imprisonment commencing on 25 July 2026 and ending on 24 July 2027.
(i)In respect of Count 9, act of indecency on a young person (XO 2017/31247), the offender is sentenced to 2 years’ imprisonment commencing on 25 July 2026 and ending on 24 July 2028.
(j)In respect of Count 10, sexual intercourse with lineal descendent (XO 2017/31248), the offender is sentence to 6 years’ imprisonment commencing on 25 July 2022 and ending on 24 July 2028.
(k)In respect of Count 11, act of indecency with a young person (XO 2017/31249), the offender is sentenced to 2 years’ imprisonment commencing on 25 July 2027 and ending on 24 July 2029.
(l)In respect of Count 13, sexual intercourse with a lineal descendent (XO 2017/31251), the offender is sentenced to 5 years’ imprisonment commencing on 25 July 2024 and ending on 24 July 2029.
(m)In respect of Count 14, act of indecency on young person (XO 2017/31252), the offender is sentenced to 6 months’ imprisonment commencing on 25 July 2024 and ending on 24 January 2025.
(n)In respect of Count 15, attempted sexual intercourse with a lineal descendant (XO 2018/31384), the offender is sentenced to 4 years’ imprisonment commencing on 25 July 2024 and ending on 24 July 2028.
(o)The overall sentence is 11 years commencing on 25 July 2018 and ending on 24 July 2029.
(p)I set a non-parole period of seven years commencing on 25 July 2018 and ending on 24 July 2025.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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