R v Ware (a pseudonym)
[2021] ACTSC 180
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ware (a pseudonym) |
Citation: | [2021] ACTSC 180 |
Hearing Date: | 20 July 2021 |
DecisionDate: | 28 July 2021 |
Before: | Burns J |
Decision: | See [21]–[25] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – maintaining sexual relationship a child – two counts act of indecency on a young person under 16 years – pleas of guilty – where offender biological father of victim – where offending occurred over period of 4.5 years – where offender has not fully accepted responsibility for offending – no real risk of re-offending – terms of full-time imprisonment only appropriate sentencing option |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56(1), 92K(2) (now repealed) |
Cases Cited: | R v CC [2016] ACTSC 43 |
Parties: | The Queen ( Crown) Irving Ware ( Offender) |
Representation: | Counsel S Janackovic ( Crown) J Robertson ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) JDR Law ( Offender) | |
File Number: | SCC 101 of 2021 |
BURNS J:
Irving Ware, on 20 April 2021 you entered pleas of guilty to the following charges in the ACT Magistrates Court:
· CC 2021/2625: a charge that between 31 December 1997 and 20 July 2002 you maintained a sexual relationship with a child contrary to s 56(1) of the Crimes Act 1900 (ACT) (the Crimes Act);
· CC 2020/8257: a charge that between 31 December 1997 and 1 January 1999 you committed an act of indecency on a young person under the age of 16 years, contrary to s 92K(2) of the Crimes Act;
· CC 2020/8258: a charge that between 31 October 1999 and 1 January 2000 you committed an act of indecency on a young person under the age of 16 years, contrary to s 92K(2) of the Crimes Act.
You were committed for sentence to this Court on 20 April 2021. A sentence hearing was conducted on 20 July 2021. It is now my responsibility to sentence you for these offences.
Maximum penalties
The maximum penalty currently prescribed for the offence of maintaining a sexual relationship with a child is 25 years’ imprisonment. Due to the dates between which this offence was committed and the provisions of the Crimes Act at that time, the
maximum penalty that may be imposed for the present offence of maintaining a sexual relationship with a child is 14 years’ imprisonment. The maximum penalty for the offence of committing an act of indecency on a young person under 16 years of age is 10 years’ imprisonment.
The facts
A comprehensive Agreed Statement of Facts was tendered at the sentence hearing. I will not now recite those facts. The victim of these offences is your son, who I will refer to as K. He was born in 1986. In 1996 you, your wife, K and his three siblings moved to Canberra. You were a Christian pastor and you and your family moved around Australia while you were acting in your ministry. Between 1 January 1998 and
20 July 2002, you sexually abused K, who was, at that time, between 11 and 15 years of age. The victim was able to recall two specific incidents of sexual abuse, to which I will refer in a moment. The Agreed Statement of Facts states that the victim recalls that you used to summons him to come to your matrimonial bed on Saturday mornings and you would masturbate him or have him masturbate you.
The first specific incident which the victim can recall occurred in 1998 when the victim was in Grade 6 at primary school. The two of you were watching television on separate couches in the lounge room. You turned off the television and the victim walked over to you to hug and wrestle with you. During the course of this incident, you tickled the victim’s genitals over his clothing. The victim did not know what to make of this and continued play fighting with you. You then manoeuvred the victim such that he was lying on his back and you reached into his shorts and pulled out his flaccid penis. You began to masturbate him. K did not like this but was silent during the act. You continued to masturbate K for a few minutes and his penis became erect. At some point, your wife appeared in the doorway of the lounge room and the victim hoped that she would stop you. However, you waved her away with one hand while the other hand remained on the victim’s penis. She left the lounge room and you continued to masturbate the victim for several minutes until he ejaculated. You then pushed the victim away from you, and walked to the bathroom where you washed your hands. The victim had never engaged in any form of masturbation prior to this incident. This is the basis of the first charge of committing an act of indecency, being charge CC 2020/8257.
The second specific incident which the victim can recall occurred in November or December 1999 when the victim was in Grade 7 at high school. In the evening on an unknown date in either November or December 1999, the victim was walking towards his bedroom when you stopped him in the hallway and asked the victim to cuddle in his room. He agreed and you and the victim went to the victim’s bedroom. The two of you lay down on the victim’s bed, facing each other. You began playing a game with the victim, which you had previously played with him before coming to Canberra, in which you would quickly touch tongues. You then began to kiss the victim and to move your tongue inside his mouth. After a short time, you pulled your erect penis and testicles out of your pants. You grabbed the victim’s hand and forcibly placed his hand on your penis. This was the first time that the victim had touched your penis. You pull down the victim’s pants and began to masturbate the victim while you were tongue kissing him and while he was holding your penis. The victim’s penis became erect. The victim did not wish to be there, and he began to fantasise about a girl at his school. After a couple of minutes, you pushed the victim off you and walked out of the bedroom. This is the basis of the second charge of committing an act of indecency, being
charge CC 2020/8258
In assessing the objective seriousness of the offence of maintaining a sexual relationship with a child, I take into account that the relationship began when the victim was 11 years of age and continued until he was nearly 16 years old. I also take into account that you are the biological father of the victim, and as such you were able to exercise control over the victim and you were a person who he loved and trusted. I also take into account that the sexual activity which forms the basis of the charge did not occur on a few isolated occasions, but occurred regularly throughout the period of the relationship. The offending occurred in the victim’s home, where he should have been entitled to feel safe and nurtured. There can be no real doubt that you engaged in this conduct for the purpose of sexual gratification. It is very clear from the
Victim Impact Statement that your offending has had a lasting detrimental psychological effect on the victim. It has blighted his life and his relationships with others. The present offence is clearly a serious example of this type of offending.
In assessing the objective seriousness of each of the offences of committing an act of indecency, I take into account the age of the victim at the time of the offences, the fact that there was skin to skin contact involved in the offences and that you were the father of the victim. The offending also occurred in the victim’s home and you committed the offences for the purpose of sexual gratification. These are also serious examples of committing an act of indecency on a young person.
Pleas of guilty
You were originally charged in the ACT Magistrates Court on 11 September 2020 with two counts of committing an act of indecency on a young person under 16 years of age. You entered pleas of not guilty to those two charges. On 9 March 2021, the prosecution amended the dates of the two charges and you were also charged with the offence of maintaining a sexual relationship with a child. On 23 March 2021, you pleaded not guilty to the charge of maintaining a sexual relationship with a child. On
20 April 2021, you pleaded guilty to all three charges and you were committed for sentence to this Court. I understand that your pleas of guilty were entered after you had received the prosecution brief of evidence. As part of that brief, you would have been made aware that the victim had covertly recorded a conversation between you and him in 2014 in which he confronted you with the allegation of sexual abuse and you made admissions. This casts doubt upon the extent to which your pleas of guilty may be seen as indicative of remorse, but I accept that they nevertheless had utilitarian value. I will reduce the otherwise appropriate sentences by approximately 20 per cent because of your pleas of guilty.
Subjective features
You have no prior convictions recorded against you. You are currently 69 years of age and the present offences occurred when you were between 45 and 50 years of age. You migrated to Australia with your family from the Netherlands in 1953. You completed Year 10 schooling and then undertook and completed an apprenticeship as a cabinetmaker and joiner. You attended Melbourne Bible Institute and
the Reformed Theological College in Victoria from 1976 until 1979. You became a pastor of the Christian Reformed Churches in Australia in 1980, a role in which you continued for 34 years. You stood down from that position in 2014 after the victim confronted you about these offences.
You have reported being subject to physical, emotional and sexual abuse as a child. You have had minimal contact with your siblings for five decades. You reported feelings of loneliness, a lack of self-confidence and lowered self-esteem as a child. You told a psychologist, Bonnie Ingram, that you are a particularly emotional person and that you have experienced shame in the context of the current offences. You expressed a fascination with men’s sexuality, and in particular homosexuality. You reported having been the subject of sexual abuse from your brother and from a neighbour as a child. Ms Ingram expressed the view that the present offences appeared to have occurred in a context where you felt alone and desired affection and connection. It is not clear how Ms Ingram came to that conclusion, as at the time of the offending you were a married man living with your wife and your children. Ms Ingram expressed the opinion that you became confused between sexual intimacy and appropriate affection between a father and son.
I note that you commenced consulting Ms Ingram on 22 June 2020 after having been referred from your general practitioner. In a report dated 18 June 2021, Ms Ingram stated that you attended nine psychological treatment sessions, the focus of which was upon developing insight into your offending pathway and improving psychosocial functioning. She believed that you were cooperative and appeared to have benefit from this treatment. Ms Ingram believed that your prospects for rehabilitation are stronger in a community setting as you have access to support from your family and appropriate treatment programs. She believed that imprisonment is likely to adversely affect your psychological functioning as the resulting isolation is likely to exacerbate your feelings of loneliness and inadequacy which she believed contributed to your offending.
Consideration
It need hardly be said that sexual offending of any kind, or in any circumstance, is considered abhorrent by the community. The community expects its courts to impose sentences for such offending against children which reflect its abhorrence of such offending and its commitment to keeping children safe. It is presumed that sexual offending against children is detrimental to the psychological and sexual development of the child.
In the present case there is no need to rely upon that presumption, because there is clear evidence that your conduct has had a devastating effect upon your son. You presented yourself to the world as a man of God, dedicated to Christian values, while in your home you engaged in conduct which was the very antithesis of the values that you preached. You are not to be sentenced for hypocrisy, but it is relevant to note that the difference between the standards and values you advocated as a pastor and those which you applied in your own home were apt to confuse and warp your son’s appreciation of the distinction between right and wrong.
I reiterate what I said in R v CC [2016] ACTSC 43, at [40], that:
Incest and other sexual offending against [a child by a parent] is calculated to cause confusion in the child, to warp their understanding of what is considered right and wrong and to lower their estimation of the fundamental social unit, the family, as a place of love and safety. Such offences are also apt to cause grave and long-lasting psychological damage. As such, these offences cause great harm, not only to the particular victim but also to our community and its social institutions and values.
You have attempted to minimise your responsibility for these offences, and to lay some of the blame for them on the victim. You have not fully accepted your responsibility for what you did. Balanced against that is the fact that there is no suggestion that you have re-offended in any way since 2002, so that a lack of complete contrition for these offences does not raise the prospect of a risk of re-offending, or cast doubt on your prospects for rehabilitation. I accept that there is no real risk of you re-offending, and personal deterrence is not a significant sentencing consideration.
I accept that you have some remorse for what you have done. The transcript of the covertly recorded conversation between yourself and the victim in 2014 demonstrates a degree of acceptance that you have caused harm to the victim and remorse for your actions. I also take into account the fact that you have now voluntarily sought treatment from a psychologist, although that did not commence until after you were charged with the present offences.
It has not been suggested that the delay between the commission of the offences and the commencement of the present prosecution is a mitigating circumstance. You were not in a position of uncertainty with proceedings, or the threat of proceedings, hanging over your head.
I take into account your age. Undoubtedly, a sentence of imprisonment will be more difficult for someone your age than for a younger man. You do not appear to have any physical or mental ailments which cannot be adequately addressed in a custodial setting. Your prior good character can be given limited weight in sentencing for the present offences, bearing in mind the nature of the offences and the period of time over which they were committed.
It was rightly accepted by you through your counsel that these offences call for the imposition of terms of imprisonment. No other sentencing option would be sufficient to act as a deterrent to others who may be minded to commit sexual offences against children, to mark the community’s disapproval of your actions, to acknowledge the harm done to your victim and to punish you.
Sentences
For the offence of maintaining a sexual relationship with a child (CC 2021/2625), I record a conviction and you are sentenced to three years and
two months’ imprisonment, which I have reduced from four years imprisonment because of your plea of guilty, commencing on 20 July 2021 and expiring on
19 September 2024.
For the first offence of committing an act of indecency on a young person under the age of 16 years (CC 2020/8257), I record a conviction and you are sentenced to
12 months’ imprisonment, which I have reduced from 15 months because of your
plea of guilty, commencing on 20 July 2021 and expiring on 19 July 2022.
For the second offence of committing an act of indecency on a young person under the age of 16 years (CC 2020/8258), I record a conviction and you are sentenced to
16 months’ imprisonment, which I have reduced from 20 months because of your
plea of guilty, commencing on 20 July 2021 and expiring on 19 November 2022.
The aggregate period of imprisonment which I have therefore imposed is one of
three years and two months’ imprisonment, commencing on 20 July 2021 and expiring on 19 September 2024.
I set a non-parole period of 20 months, commencing 20 July 2021 and expiring on
19 March 2023.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |