The Queen v Thomson (No 3)
[2015] ACTSC 379
•13 November 2015
HUMAN RIGHTS ACT 2004 (ACT)
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Thomson (No 3) |
Citation: | [2015] ACTSC 379 |
Hearing Date: | 5 November 2015 |
DecisionDate: | 13 November 2015 |
Before: | Refshauge J |
Decision: | 1. The convictions of committing an act of indecency in the presence of a person under the age of ten years on two occasions between 1 January and 30 September 2008 be confirmed. 2. For the first of those convictions, Sarah Thomson be sentenced to two years and six months imprisonment to commence today, 13 November 2015. 3. For the second of those convictions, Sarah Thomson be sentenced to two years and nine months imprisonment to commence on 12 May 2016 to be cumulative as to nine months on the first sentence. 4. The sentence be suspended today, 13 November 2015, for three years and three months. 5. Sarah Thomson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of four years from today and with a probation condition that she be under the supervision of the Director General or her delegate for three years or such lesser period as the person supervising her considers appropriate and that she obey all reasonable directions of the supervising her. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – resentence following appeal – committing an act of indecency in the presence of a person under the age of ten years – opportunistic – no pre-meditation – delay – effect of delay upon human rights – offender the victim of severe domestic violence – suspended sentence – Good Behaviour Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 3, 77, 89 |
Cases Cited: | Ashdown v The Queen (2011) 219 A Crim R 454 Cheung v The Queen (2001) 209 CLR 1 |
Parties: | The Queen (Crown) Sarah Jane Thomson (Defendant) |
Representation: | Counsel Mr J White SC (Crown) Mr S Gill (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Pappas,j - attorney (Defendant) | |
File Number: | SCC 42 of 2012 |
Refshauge J:
After a trial commencing on 24 March 2014, Sarah Jane Thomson was convicted by a jury of three counts of committing indecency in the presence of a child under the age of 10 years.
On 6 May 2014, I sentenced Ms Thomson to a total term of three years imprisonment wholly suspended with a Good Behaviour Order for four years and with a probation condition.
On 15 April 2014, Ms Thomson appealed against her conviction. On 23 May 2014, the prosecution appealed against the sentence I had imposed.
The appeal was heard on 3 November 2014 and, on 14 October 2015, the Court (by majority) upheld the appeal against conviction as to one count on the indictment and upheld the appeal against sentence. See Thomson v The Queen; The Queen v Thomson [2015] ACTCA 16. The count on the indictment that was the subject of the appeal and set aside was count three. The Court remitted the proceedings back to me for further hearing and decision on sentence.
The basis on which the Court of Appeal upheld the appeal against sentence was that I had stated that the maximum available penalty was seven years imprisonment. In fact, the maximum available penalty was twelve years imprisonment. I do not know how that error occurred. I regret it and the trouble it has caused everyone involved.
There is, of course, a significant difference in the maximum penalty I noted and the actual maximum penalty. It is also clear that a maximum penalty of a statutory offence serves as an indication of the relative seriousness of the offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]. Nevertheless, as pointed out in Ibbs v The Queen (1987) 163 CLR 447 at 451-2, a sentencing court must be careful when sentencing for an offence which may be committed in various ways. As the court said, at 452:
When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.
The court then quoted, with apparent approval, what Dwyer CJ said in Reynolds v Wilkinson (1948) 51 WALR 17 at 18, namely:
Crimes bearing the same general description, if not equally evil content or characteristics and offenders, also differ in themselves.
Crimes bearing the same general description have not equally evil content or characteristics, and offenders also differ in themselves.
As the finding of guilt was made by a jury, it is necessary for me to find the facts from the evidence given at the trial. The facts that I find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond a reasonable doubt. Where Ms Thomson relies on mitigatory facts, however, I need to find them on the balance of probabilities.
These principles have been set out and explained in Cheung v The Queen (2001) 209 CLR 1 at 12-14. See also The Queen v Carney [2013] ACTSC 266 at [149]. These are the principles I shall apply.
The facts
In my decision, R v Thomson (No 2) [2014] ACTSC 133 at [3]-[6], I set out the general factual background which does not seem to have been controversial in the Court of Appeal. I said:
3. The complainant was the daughter of Ms Thomson’s next-door neighbour and she would visit Ms Thomson by herself and with a friend to play with her son.
4. From time to time, Ms Thomson would ask the complainant to take photographs of her on a camera that Ms Thomson provided to her for the purpose. Ms Thomson would then download the photographs to her computer and share them with a man with whom she had a relationship, but who did not live in Canberra.
5. The indecency involved was that, when Ms Thomson posed for the photographs, she was naked and in very sexualised poses which included the insertion of a carrot into her vagina and her anus. The photographs showed Ms Thomson in poses that were very explicitly sexual, though probably no more explicit than much of the pornography that can readily be accessed on the Internet. I say that not to minimise the nature of the material, but to put it in a fair context. They would be confronting to an adult, let alone to a child.
6.The photographs, however, were not, in the relevant sense, the acts of indecency; that was the posing of Ms Thomson in the sexualised way that she did in front of the complainant who was, at the time, eight or nine years old. There is no doubt that the posing involved was, in the context of being in the presence of a young child, indecent. No contrary submission was made to the jury or to me.
Because the Court of Appeal set aside the verdict on one count, it is necessary to particularise in more detail the two counts in respect of which convictions were entered following the jury’s verdict and which were not disturbed in the Court of Appeal.
The two remaining counts were as follows.
Count 1
Ms Thomson asked the complainant to take photographs of her so that she could send them to her boyfriend. She gave the complainant a digital camera and they both went into Ms Thomson’s bedroom where she got undressed and smeared incense and water over her body. Ms Thomson told the complainant to take photos of her breasts and her “front bottom”. Ms Thomson posed on the bed and asked the complainant to “zoom in” on her breasts. Ms Thomson and the complainant then went to the bathroom where she inserted a carrot halfway into her vagina and asked the complainant to take photographs of that. The complainant did not want to do so and so Ms Thomson took the photographs herself.
Later, Ms Thomson got some ice and dropped it on her breasts and asked the complainant to take photographs of her which the complainant did, but then left because “she didn’t want to be there”.
Count 2
Sometime later, while the complainant was playing at Ms Thomson’s house, she asked her to come into the bedroom and take some more photographs. The complainant did so. Ms Thomson took her clothes off and posed naked with her stockings wrapped around her arms and mouth. She then put the stockings between her legs and pulled it through asking the complainant to take photographs of her doing that, which the complainant did.
Subjective circumstances
I had no Pre-Sentence Report and no other material was tendered by the Crown on sentence, other than Victim Impact Statements. I had written references, in particular a detailed letter from Ms Thomson’s mother, tendered by Ms Thomson.
Assertions as to Ms Thomson’s subjective circumstances were made from the Bar Table. While not usual in this Court, that is common in other sentencing proceedings. Indeed, s 4(2) of the Evidence Act 2011 (ACT), facilitates that, perhaps even effectively contemplating it. I address this in Talukdar v Dunbar (2009) 194 A Crim R 545 at 549-50; [22]-[25]. The Crown did not controvert the submissions made in this way either at the original sentencing or on the re‑sentencing before me and, in the circumstances, I was prepared, and following authority, I did accept them. There was no challenge on the re‑sentencing to any of these circumstances.
In these circumstances, I see no reason why I should not repeat what I there said. In R v Thomson (No 2) at [10]-[25], I said:
10.Ms Thomson was born in Orange, New South Wales. She is now thirty-three years old. [I interpose to say that she is, of course, now about eighteen months older than that] She is the eldest of three children. Her mother described her as “a simple, loving and beautiful person”. Ms Thomson’s mother said that she instilled in her the highest moral standards.
11.The family was close-knit and committed to their church, which Ms Thomson embraced. It was a strict and somewhat insular and close-knit denomination. She attended the local primary school. The family moved to Taree when Ms Thomson was ten years old, but maintained their church connections. Ms Thomson completed her education at Taree High School. She enjoyed school. She was said to have “loved ballet, horses and hugs”.
12.She left at Year 10 and then participated more actively in her church’s religious activities, teaching the Bible. She had a caring personality, but was apparently rather naive from her restricted upbringing.
13.At age seventeen, she moved to Newcastle where she completed a TAFE course in hospitality. She maintained her engagement with her church. In Newcastle, however, she met the man who would later become her first husband. He was also a member of her church, through which they met. At the time, Ms Thomson had, apparently because of the religious restrictions in her upbringing, no experience of relationships, especially sexual relationships. She fell in love with him.
14.She married this man in 2000 and her life changed dramatically. They lived in Newcastle and then in Sydney, where Ms Thomson worked as a professional masseuse. They later moved to Queensland and she became isolated from her parents and siblings. Her husband behaved in a controlling and abusive manner. He demeaned Ms Thomson and was physically and sexually violent to her, causing her to turn inwards.
15.In 2002, they moved to Canberra. By this time, Ms Thomson was pregnant. The domestic violence became worse. On one occasion, Ms Thomson’s husband kicked the then pregnant Ms Thomson in the stomach, causing her to go into labour prematurely. Her son was born and survived, but the violence continued, indeed, it increased and Ms Thomson separated from her husband. She had subsequently to have a Domestic Violence Order issued against him. In 2006 she had what was described as a psychological shutdown.
16.She lived at refuges for some time and had access to counselling. To her credit, however, she undertook a computer course to help her into the workforce and managed to gain employment as an office worker but remained fragile. She was fearful and rarely went outdoors, unless necessary.
17.She then met the man to whom she would later send the photographs that are the subject of the offences. He lived interstate but came to Canberra for his employment. A relationship developed and became a sexual one. He felt “safe” in her eyes; she found him caring. She was said to have experienced for the first time, outside her family, what it was like to be loved. She clearly had a reaction to the domestic violence she had experienced and, in response, her involvement became increasingly explicit. She admitted using the complainant as photographer, though she had denied causing her to take photographs of her in the explicit poses.
18.She later met her present husband in about 2008, through her neighbour, the complainant’s mother. He was a quiet and gentle man with whom she developed a close and loving relationship. She experienced a normal relationship with a man for the first time. He had a child, to whom Ms Thomson became a caring mother.
19.Ms Thomson became employed as a cleaner. Her husband had employment full-time as a television technician.
20.Ms Thomson’s husband provided a reference, in which he described her as a very caring and generous person, giving her time to help others. She often took the complainant to school, even though it was in the opposite direction to her son’s school, which she had carefully chosen, after investigation, to ensure it gave her son the best chance of a good education and a better environment.
21.He described her as “a great stepmother to [his] daughter, teaching her good manners and responsibility as well as to be kind and caring to others”. He is clearly devoted to her.
22.These proceedings have, unsurprisingly, had an enormous effect on Ms Thomson. Her husband said that she has locked herself in her home and will not see anyone unless he is present with her. She, and he, have entertained thoughts of suicide.
23.She is fearful for her safety and suspiciously watches every car that goes by. She has distanced herself from all children and will not even greet them, as would be expected from someone who is a mother herself. Her husband expressed the view that she would not re-offend.
24.Her mother described how Ms Thomson has completely shut herself off from contact outside the immediate family, refusing to go out to parent-teacher nights for her son, not answering the door, giving up work and losing her faith. She only goes to the doctor or shopping with others and then wearing sunglasses day and night and avoiding anyone she knows.
25.I also had two references from friends. They describe her as dependable and honest and as someone who was especially caring of others. One described the very generous support she provided in times of the referee’s need. Both described the offences as completely out of character. One of them expressly stated that she would have no hesitation in leaving her children in Ms Thomson’s care. Both referees confirmed the complete change in her that these proceedings have caused. She has withdrawn from much contact with them. On the rare occasion that she meets them, she is withdrawn and the occasions are not very happy.
Both referees confirmed the complete change in her that these proceedings have caused. She has withdrawn from much contact with them. On the rare occasion that she meets them, she is withdrawn and the occasions are not very happy.
Victim impact statement
The mother and father of the complainant provided Victim Impact Statements at the original sentencing proceedings on 30 April 2014. At the re-sentencing, I had no additional material. This was significant because, in her victim impact statement, the complainant’s mother expressed the view that there was hope for the complainant to move forward and that they could all start healing their lives. In my view, it would have been helpful and, indeed, important to know whether that had happened, but I was not favoured with that information. An improvement in the problems experienced by the victim would not be mitigating but it would be relevant, it may ameliorate the aggravating feature that causing such harm requires to be taken into account. There is nothing I can do about that.
The Victim Impact Statements I did have described serious consequences. That is unsurprising. Courts know of the harm that inappropriate sexual activity with young children can and does cause and that it can be lasting. The complainant was unable to write her own Statement at the time because of the trauma of re-living the experience. Indeed, she had experienced suicidal thoughts and had engaged in self‑harm. Such conduct naturally caused her parents great anxiety, stress and pain.
As so often happens, the complainant was said to blame herself, regarding herself as a “bad girl”. That, of course, is completely untrue and she bears no responsibility for the offences nor for the pain and difficulties she is experiencing. I certainly hope that she is being told that. She had been engaged in counselling, as I noted, but, again, I do not know whether that was continuing and what success, if any, it had.
The offences
The Crown submitted that the offences were extremely serious. Indeed, the Crown submitted that they were at “the high end of the range of such offending”. I accept that they are serious offences but a careful objective assessment needs to be made of them, the facts that constitute the offences and the circumstances in which they were committed.
It seems to me that touching of a young child on his her genitals or causing such a child to touch the genitals of an adult, short of sexual intercourse, is generally, and rightly, regarded as more serious.
The Crown submitted that the offences were opportunistic, and I agree. There appeared to be no pre-meditation or planning involved in them and it was clear that Ms Thomson took similar photographs herself. The photographs the subject of the third count must have, on the decision of the Court of Appeal, been taken by Ms Thomson herself.
There is no doubt that the child was young, being eight or nine, at the time of the offending. Nevertheless, this is at the upper end of the range of age for the offence.
The taking of the photographs, however, made the complainant something of a participant in the exercise and it is clear that the child was at relatively close proximity to Ms Thomson when at least some of the photographs were being taken. The evidence was not entirely clear on this point, for some of the closer photographs appeared to have been taken by use of the focus mechanism on the camera rather than by the complainant coming closer to Ms Thomson.
It may be argued that the second count was somewhat more serious because it was a repetition of the exposure of the complainant to the sexual sights. Although, on this occasion, there was no penetration with the carrot and the sexual activity was likely to be regarded as less serious than that which was part of the first offence. Certainly, it was less graphic.
The Crown also submitted that there was an abuse of trust in the commission of the offences. The evidence was not entirely clear but I am prepared to find that Ms Thomson did take some guardian responsibility for the complainant when she came over to her house to play with Ms Thomson’s son.
To take advantage of the complainant in these circumstances, as Ms Thomson did, is an aggravating factor by whatever label it is given.
There is no doubt that the offences were serious and should be treated as such by the court. I will do so.
Contentions on delay
Mr S Gill, who appeared for Ms Thomson, submitted that the course of the proceedings had infringed Ms Thomson’s rights under the Human Rights Act 2004 (ACT), to a speedy trial.
He pointed out and relied on the fact that the appeal to the Court of Appeal included a challenge by the Crown to the sentence imposed. The Court of Appeal, no doubt because of the heavy workload of the Court, was unable to deliver judgment until less than a month less than one year after the hearing. This meant that I am now re-sentencing Ms Thomson for offences committed in 2008.
This delay, especially that in the Court of Appeal, meant, Mr Gill’s submissions, went that Ms Thomson’s rights under s 22 of the Human Rights Act to a speedy trial had been infringed.
That infringement, he submitted, should be accorded a proper response and that should be reflected in the sentence to be imposed.
This is not the occasion to undertake a detailed analysis of the cases or the jurisprudence in this territory, in Victoria and overseas in those other jurisdictions such as New Zealand, Canada and Europe where valuable jurisprudence on human rights and responses to the infringement or impairment of such rights have been developed.
Both parties agreed that both at common law and under the Human Rights Act, Ms Thomson was entitled to have any delay taken into account in sentencing, though how and the effect was not agreed.
In R v Ferguson [2008] VSCA 257 at [29], the Victorian Court of Appeal explored the common law position and stated:
In R v Merrett, Piggott & Ferrari, President Maxwell reviewed the authorities concerning the relevance of delay as a mitigating factor in sentencing, especially in circumstances where the offender has been on bail during the period of delay and in that time has engaged in the effective process of rehabilitation by participating in the community without further offending. The unfairness of serious criminal charges hanging over the head of the offender for a long period is also a relevant consideration. With reference to R v Liang and Li, Maxwell P stated that delay constitutes ‘A powerful mitigating factor’.
Nevertheless, as also pointed out in the Victorian Court of Appeal in R v Nikodjevic [2004] VSCA 222, every case is different and the effect will vary according to the circumstances. There is no automatic right to a discount in every case of delay.
It is also common to note the effect on an offender of having the uncertainty of an outcome hanging over his or head as a relevant factor that must be considered and is usually mitigating.
As to the position under human rights jurisprudence, there are similar statements. Thus, in R v Mills [2011] ACTSC 107 at [19], Higgins CJ pointed out that the response to a finding of unreasonable delay may be a reduced penalty when guilt is found.
This approach was also taken in R v Klobucar (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 186 of 2010, 19 September 2013) where Penfold J considered:
In my view, s 30 of the Human Rights Act requires me, in determining under the Crimes (Sentencing) Act what punishment is ‘just and appropriate’, to take account of the breach of Mr Klobucar’s human rights to be tried without unreasonable delay that has been caused by the various delays in finalising this matter, very few of which can be even indirectly attributed to his own actions.
I note that the international jurisprudence in relation to the right to be tried without unreasonable delay does recognise that a person’s choices as to how a matter is conducted may be taken into account in determining whether there has been unreasonable delay to the extent that they affect the steps necessary to deal with the matter and therefore the reasonable time that will be required. But I’ve not come across any suggestions that a plea of not guilty, as such, deprives a person of any claim to trial within a reasonable time. The international authorities recognise that a sentence reduction may be an acceptable remedy for a breach of that right but they do also suggest that such sentence reductions will generally be modest.
The relevant circumstances here are that Ms Thomson was summonsed to appear in the Magistrates Court on 30 November 2011 after the offences, occurring in 2008, were discovered and reported by the complainant. On 1 March 2012, she was committed for trial to this Court. The trial commenced on 24 March 2014, over two years later, due to the backlog in this Court and the institutional challenges it was facing.
She was sentenced on 6 May 2014 and has been subject to a Good Behaviour Order ever since that time. The Good Behaviour Order included a probation condition.
On 14 April 2014, she commenced her appeal against conviction and, on 23 May 2014, the Crown commenced its appeal against sentence. The appeal was heard on 3 November 2014. Judgment was delivered on 14 October 2015.
I heard sentencing submissions on 5 November 2015 and I am now imposing sentence today.
Consideration
The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is important. The courts must make clear that sexual activity with children is forbidden.
It seems to me that it is important to acknowledge the harm done to the victim in the sentence imposed.
I do not consider that specific deterrence will play much part in this sentence as there is no doubt, in my mind, that Ms Thomson will not re-offend, certainly not in this similar way again.
I have described the nature and circumstances of the offending above (at [10]-[15]), and I take that into account.
I take into account, as I am required to do, the factors referred to in s 33 of the Crimes (Sentencing) Act as I know them. So far as I know them, they have been set out above.
It is relevant that Ms Thomson has no prior convictions. It is also relevant that she had what must be described fairly as a sheltered upbringing which did not allow her to develop the knowledge of boundaries that a more open childhood may have engendered.
It is also relevant that she was the subject of severe domestic violence, which is another cancer in our community and whose effects can be devastating on victims. In my view, it clearly led Ms Thomson to develop a distorted picture of acceptable behaviour when she escaped that situation and found a loving and caring relationship.
Neither counsel assisted me with any sentencing practice. Conscious of the caution with which I need to approach them, as explained in Ashdown v The Queen (2011) 219 A Crim R 454 at 511 I had access to the ACT sentencing database. It showed that prison is not inevitable for such an offence even after a plea of not guilty, though that ordinarily is the result of a conviction. No prison sentence of more than thirty months was recorded.
In my view, a sentence of imprisonment must be imposed, though how it is to be served must be informed by all the factors I have outlined and used to come to the instinctive synthesis which is the sentence I must impose.
As Mr Gill pointed out, insofar as the Court of Appeal considered the issue of sentence, it did not express or criticise my reference to the well known comments of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-3, where his Honour said:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has been extended even to offenders with bad records when the judge forms the view almost intuitively, in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
That is not an approach that obviously can apply in every case and must be appropriate to the circumstances. These include prior record, response to supervision and likely prospects of reform.
I also note the decision of the Federal Court of Australia in Valentini and Garvie (1980) 2 A Crim R 170, where a suspended prison sentence was imposed for one of the most serious offences punishable by a maximum penalty much longer than that applicable to these offences.
The court noted, at 175, that:
On the question of general deterrence and retribution, the sentences imposed were sentences of imprisonment, although they were suspended. Such a sentence carries the usual consequences for the respondent’s record and future. ... If a respondent commits a breach of his recognisance at any time during its currency, he may be brought back and sentenced ... to a term not exceeding the head sentences imposed upon him. The fact that the nature of such a sentence is sometimes publically misunderstood and at times underrated, does not seem to be a proper ground for increasing it.
I note that without a Pre-Sentence Report, ss 77 and 89 of the Crimes (Sentencing) Act prevent me from making a community service work condition to a Good Behaviour Order or to direct that a term of imprisonment be served by periodic detention.
As there are two offences for which Ms Thomson must be sentenced, it is necessary for me to consider the issue of totality.
I have carefully considered the length of each of the sentences to ensure that when there are overlapping common elements between any of the offences, Ms Thomson is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. While not temporarily connected directly, these offences had some relevant relationship between them in the circumstances under which they were committed.
I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not too severe. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
Ms Thomson, please stand.
1. I confirm the convictions of committing an act of indecency in the presence of a person under the age of ten years on two occasions between 1 January and 30 September 2008.
2. For the first of those convictions, I sentence you to two years and six months imprisonment to commence today.
3. For the second of those convictions, I sentence you to two years and nine months imprisonment to commence on 12 May 2016 to be cumulative as to nine months on the first sentence.
4. That is a total sentence of three years and three months imprisonment.
5. I suspend the sentence today for three years and three months.
6. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of four years from today and with a probation condition that you be under the supervision of the Director General or her delegate for three years or such lesser period as the person supervising you considers appropriate and that you obey all reasonable directions of the person supervising you.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 17 December 2015 |
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