The Queen v GJ [No. 3]
[2014] ACTSC 193
•14 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v GJ [No. 3] |
Citation: | [2014] ACTSC 193 |
Hearing Date: | 20 June 2014 |
DecisionDate: | 14 July 2014 |
Before: | Penfold J |
Decision: | See [30] and [31] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – one offence of act of indecency in presence of child under 10 – victim was offender’s daughter – breach of trust – removal of mother from family home – isolation of child who spoke little English – child threatened with imprisonment if act of indecency reported – no remorse – offender aged 65, no prior convictions, positive good character – limited community service available to sex offenders – available community service not suitable for offender because of health concerns – sentence of two years imprisonment, first three months to be served by periodic detention. |
Legislation Cited: | Crimes Act 1900 (ACT), s 61(1) Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | R v DF [2010] ACTSC, Penfold J, 10 June 2010 R v AB [2008] ACTSC, Penfold J, 12 April 2012 R v TC ([2011] ACTSC, Penfold J, 28 March 2011) |
Parties: | The Queen (Crown) GJ (Offender) |
Representation: | Counsel: Mr M Thomas (Crown) Mr S Gill (Offender) |
| Solicitors: ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number: | SCC 55 of 2013 |
Publication Restriction: | Yes, victim and identifying information (including offender's name) |
The offence
GJ has been found guilty by a jury of one act of indecency in the presence of a child under 10, being in this case GJ’s five-year-old daughter.
That offence arises under s 61(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 12 years imprisonment.
The offence was committed over the last weekend in March 2012. GJ’s wife, who was the mother of the victim and the victim’s younger sister, had been removed from the family home after GJ reported to police that she had assaulted him.
There is no dispute that on the night before the mother was removed from the family home, there had been an argument between GJ and the mother that had briefly become physical. The mother’s evidence, however, was that the argument had been resolved before they went to bed, and that she was taken completely by surprise when the police turned up the next morning.
The children remained with GJ for several days, until they were removed and taken into care because of concerns for their welfare reported by the mother. After a few weeks they were returned to their mother, and they then lived with her in a refuge for several months, during which the allegation of indecent behaviour came to light.
The act was particularised by the Crown as involving the child lying on her back naked while GJ stood above her holding his penis and urinated or ejaculated onto her crotch. The evidence given at the trial would not permit me to determine beyond reasonable doubt whether the act involved urination or ejaculation, although I accept the defence submission that there is some evidence favouring urination, but I do not think it matters. If GJ’s act was in fact urination and therefore without the overtly sexual connotation of ejaculation, it must still have had an inappropriate significance when done to a five-year-old child. Whether that involved a different kind of sexual connotation, or humiliation of the child, or something else again, does not seem to provide any mitigation of what was, as I’ve already said, an entirely inappropriate act in relation to a five-year-old child.
GJ was charged on 14 September 2012 and released on bail. He has spent no time in custody on this offence.
Assessment of offence
There is no doubt that GJ’s action was a grave breach of the trust and authority given to him by his position as the victim’s father.
Further information about the family arrangements is necessary to assess this offence properly. The mother is a Chinese woman; she and GJ met while she was living in China and began a relationship to which the victim and her younger sister were born. The mother and children remained in China for some years with GJ visiting them for a couple of months at a time a couple of times a year. The mother and children moved to Australia only three weeks before the offences, the mother having obtained an independent entitlement to permanent residency.
The mother gave her evidence through an interpreter, although the defence suggested that her English is rather better than she admitted. The victim, who had been attending an ACT primary school since coming to Canberra, had very limited English, and made her complaint to police, also through an interpreter, in a taped record of conversation that was played to the jury.
The Crown says that the offence was aggravated by the fact that it occurred at a point when the victim was very isolated, especially by the removal of her mother, but also by her lack of English. I accept that the circumstances were as described, but I do not accept that the victim’s lack of other adult contacts (apart from presumably adults at her school) is a feature that distinguishes this victim from most other five-year-olds, whose access to other adults is in general controlled by their parents; it seems to me that the potentially limited access to other trustworthy adults is part of the reason why these acts carry such high penalties when committed against young children.
In the trial, evidence was given by the victim’s mother of the victim’s claim that GJ had told her that if she told anyone about his actions, she, the victim, would be put in gaol. This evidence was supported by a drawing done by the victim when she was trying to explain to her mother what her father had told her, a process complicated by the fact that the mother could not understand the victim’s repeated references to “dale”. The drawing, however, in the corner of a page mainly devoted to other drawings, was to my mind clearly a picture of a person confined in a small barred room. I am satisfied beyond reasonable doubt that this threat was made. However, I do not take account of another alleged threat to the victim about the consequences of disclosure, given that the evidence of that threat was bizarre, vague and unsupported by any other evidence.
GJ disputes the jury verdict and I understand plans to appeal. Unsurprisingly in those circumstances he has expressed no remorse and nor has he sought to provide any kind of explanation for the offence.
Subjective circumstances
GJ is now 65. He has no criminal record. The Pre-Sentence Report provided the following background information:
[GJ] has lived in Canberra since 1972 after relocating from his birth city of Melbourne.
[GJ] reported a number of intimate relationships before he started an intimate relationship with his wife in 2005 after corresponding with her for nine years. He reported his previous relationships lasted between two and three years except for one which continued for eight years. It is noted [GJ] never lived with his intimate partners before his wife, whom he married in China in February 2007, and lived with for periods ranging between three weeks and three months, during his visits to China and following his wife’s arrival to Australia.
[GJ] claimed his wife became emotionally unstable after becoming pregnant with their first daughter in 2006, but refused medical or counselling interventions. There is documentation to support [GJ]’s claims of concern regarding his wife’s behaviour dating back to 2008 when his wife was visiting [GJ] in Australia.
The couple had two daughters together (now aged 7 and 5, both born in China). The [older] child is the victim of the current offence. [GJ] claimed he did everything he could to try and keep the family together prior to the offence allegations. Following the offence allegations, [GJ] reported he had seen his children under supervised access arrangement [sic] on two occasions in March 2013. He claimed he had attempted several times to see his children again but eventually stopped requesting these supervised visits as his wife was not cooperative, which has caused him concern.
[GJ] currently resides in a home he purchased in 2009. He noted although he never cohabited with his partners prior to his wife, he always shared accommodation with others as he rented out rooms in his home.
[GJ] advised he completed a university degree in Economics in Melbourne and subsequently commenced employment in the area of statistics where he continued to work for 16 years. He stated he was employed full time all his life in the statistics and research area until he retired 10 years ago.
[GJ] reported being an active member of a variety of local organisations. He reported he has actively engaged with some of these organisations for as long as 40 years and has developed many friendships as a result.
[GJ] stated he currently suffers from high blood pressure and has been controlling this condition with medication.
[GJ] reported no history of personal mental health issues prior to his wife becoming pregnant with their first child. At the time of his wife’s pregnancy, [GJ] noted her behaviour started to change such that she became extremely irrational and violent towards him, resulting in police being called, and at one time, on 30 March 2012, resulting in a Domestic Violence Order being sought against her. ... These alleged changes in his wife’s behaviour led to [GJ]’s attendance at counselling to address his stress and develop coping strategies in order to try and keep his relationship with his wife from deteriorating further. This is supported by documentation from [GJ]’s treating counsellor.
GJ’s claims of emotional stress arising from his marriage, as recorded in the Pre-Sentence Report, are elaborated in two further documents in evidence. The first was a referral in July 2008 made by GJ’s doctor to Dr William Knox, whom I understand to be a consultant psychiatrist. The referral relates to GJ’s concerns about his wife’s behaviour when pregnant with the younger child, and his suggestion that the solution would be for his wife to return to China and for him to pay for servants (although it is not clear whether the suggestion involved the return of the older child to China with her mother).
The second document was a record of counselling provided to GJ under the Victims Services Scheme in 2008 and 2009 and again, shortly after this offence, in 2012, although the circumstances in which GJ was identified as a victim, and what he was a victim of, at any of these points are not apparent from these documents.
GJ provided eight character references from friends, mainly people who knew him through his work in the Parliamentary Library from which he retired in 2003. They record his skills as a statistician, his long-term interest in current affairs and membership of a political party, his involvement in community activities such as country dancing, bridge, tennis and amateur theatrics, and as a member of the Australia-China Friendship Society and a long-term blood donor, and his affection for and pride in his children.
The references also report a 20-year relationship between GJ and a woman other than the children’s mother, although the references are not consistent about whether this was a romantic relationship. The relationship apparently changed as the woman’s condition deteriorated as a result of multiple sclerosis, and GJ began his relationship with the children’s mother, but it seems that throughout his marriage, and since, he has maintained his connection with this other woman and continues to provide support for her in various ways.
It is clear that GJ’s friends think highly of him, and regard the offence of which he has been found guilty as entirely out of character.
Defence counsel submitted, on the authority of Ryan v The Queen (2001) 206 CLR 267 that since GJ is apart from this offence a person of both negative and positive good character, and that on the character evidence the act of which he has been found guilty was out of character generally but also having regard to his longstanding commitment to the more vulnerable members of society (counsel’s words), his good character does entitle him to a degree of leniency. There is no doubt that GJ is entitled to leniency having regard to his apparently blameless life before the commission of this offence, and to his engagement in many pro-social community activities. I am not necessarily convinced that any or all of membership of a political party of whatever colour, donating blood and GJ’s ongoing support for his now-disabled friend are properly characterised as demonstrating a “long-standing commitment to the more vulnerable members of society”, but I will nevertheless take all these matters into account in this sentencing without any further attempt at characterisation of the matters.
Sentencing options
The Pre-Sentence Report assessed GJ as unsuitable for community service but suitable for periodic detention. The unsuitability for community service was due to health concerns. GJ provided a report from his GP about his general health with particular reference to his suitability for community-based sentencing options. His doctor provided detailed medical information and concluded:
In summary, GJ is a 65 year old male who is slightly overweight who suffers from hypertension that is adequately controlled. There is nothing in his medical history or examination that precludes him from performing community work with the following suggested restrictions. No heavy manual labour that involves lifting, pushing or pulling more than 20kg or pick and shovel work. He is fit to paint, pick up litter and other light manual work.
The Pre-Sentence Report author was invited to review her assessment of GJ as unsuitable for community service by reference to that medical advice, but no further advice was formally received. Defence counsel, however, said that his instructing solicitor, but not apparently the prosecutor or the court (which I regard as an entirely unsatisfactory approach by Corrective Services), had been advised that the medical advice did not change the assessment of unsuitability. The instructing solicitor has since indicated that this was because of the limited kinds of community service that were available to sex offenders as a group. I am surprised at the implication of the Corrections advice that community service is not available to a sex offender who cannot lift, push or pull more than 20 kilograms or engage in pick and shovel work. Among other things, this might well exclude a greater proportion of female offenders than male offenders, an outcome which would seem to be unacceptable, although I accept that the majority of sex offenders are male.
Comparable cases
As well as referring me to several authorities for statements of general principle relevant to sentencing for offences of this kind, counsel referred me to a number of sentences imposed for acts of indecency, some of which involved acts of indecency on children under the age of 10. I mention, without providing any analysis of most of the sentences that I’m about to mention, that these include sentences in the following matters:
R v Navin Edwin [2013] ACTSC, Burns J, 26 September 2013
R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014
R v Jones [2014] ACTSC 119
R v Adnan Symss [2011] ACTSC, Gray J, 22 July 2011
R v Meyboom [2012] ACTCA 48
R v Dhaimat [2014] ACTSC, Burns J, 12 March 2014
R v AB [2008] ACTSC, Penfold J, 12 April 2012R v DF [2010] ACTSC, Penfold J, 10 June 2010
R v Duy Pham [2012] ACTSC, Burns J, 23 October 2012; and
R v Liam Taylor [2008] ACTSC, Higgins CJ, 2 March 2011; R v Liam Taylor [2010] ACTSC 121
Of these, only AB and Liam Taylor can be clearly identified as relating to an act of indecency involving a child under 10 (in the latter case only by reference to the decision in the judge-alone trial preceding the sentencing). R v TC ([2011] ACTSC, Penfold J, 28 March 2011), not mentioned by counsel, was a matter in which I imposed sentence, which also involved an act of indecency on a child under 10. In all three cases, the act of indecency was on rather than in the presence of the child concerned. In AB and TC, the act was committed in the context of repeated offending also involving incest.
In AB, the offender was sentenced for two counts constituted by requiring his seven or eight-year-old son to masturbate him as a prelude to anal intercourse – the sentences were two and a half years each, but they were in each case served concurrently with the associated incest offence.
In Liam Taylor, the offender was sentenced, apparently for one act of indecency found by the trial judge to involve licking the external genitals of a child aged four or five years, to 18 months imprisonment, to be suspended after six months in full-time custody.
In TC, the offender was sentenced for one act of indecency against his daughter, involving touching her genitals, while she was under 10 – that sentence was two years imprisonment, reduced from two and a half years in recognition of a plea of guilty, and was served so as to add six months in a total sentence of seven years for offences against that daughter.
In contrast to the current case, both AB and TC had had dysfunctional childhoods, indeed a tragic childhood in AB’s case, and many of their personal circumstances were such as to engage the court’s sympathy. If Liam Taylor’s personal circumstances were relevant to his sentencing, that is not apparent from the sentencing remarks.
Having considered those cases in particular, other cases mentioned by counsel, and the submissions in this case, I note first that I accept the Crown’s submission that general deterrence is very important in cases like this, because of the scope for parents to commit sexual offences against their children and for the offences to remain hidden for a long time or even forever. I am however willing to accept that GJ should not need personal deterrence beyond that provided by the trial processes and by what would in any case be an appropriate sentence by reference to other criteria. As to the question of what is an appropriate sentence, I am satisfied first that no sentence other than imprisonment is appropriate for this offence. However, noting among other things the defence submission that this case differed from most of the other “comparable” cases in that it involved only a single isolated incident rather than a course of conduct, and GJ’s capacity to lead an otherwise pro-social life, I am also satisfied that there is no need for any of his sentence to be served in full-time custody.
Sentencing
GJ, please stand. I record a conviction on one count of act of indecency in the presence of a child under 10 years of age.
I now sentence you to imprisonment for two years. The first three months of that sentence are to be served by periodic detention, the first weekend of which will start on Friday 18 July 2014 and the last one of which will end on Sunday 12 October 2014. From 14 October 2014, the remainder of the sentence will be suspended upon you signing an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years, with security in the amount of $5,000. That good behaviour order is subject to the conditions that:
(a)for such period not exceeding two years as ACT Corrective Services considers necessary, you accept the Director-General’s supervision and obey all reasonable directions of the Director-General, or delegate;
(b)that you undertake such counselling, courses, programs or treatment as directed by your supervising officer; and
(c)that you be assessed and, if found suitable, you undertake the Adult Sex Offenders program.
You will be given a written copy of the good behaviour order and it will be explained to you by court officials. In short, it means that for the next two years, you need to keep out of trouble, keep in contact with Corrective Services so long as they require you to do so and, if appropriate, participate in the Adult Sex Offenders program. If you commit another offence during that time, you may find yourself back before this court to be re-sentenced for this offence, as well as possibly losing your $5,000 security, and, depending on the nature of that new offence, you could find yourself serving some of the two-year sentence in another form of custody. Failing to comply with your supervision requirements or, if appropriate, the requirements of the Adult Sex Offenders program, would also be a breach that could see you being re-sentenced for the act of indecency offence.
If you have any particular questions about the order, please ask the court officials, or Mr Gill will be able to explain more details if you need them.
GJ, you can sit down.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |