Criminal division – sentencing
Sexual abuse by a person in authority
Yüklə 1,78 Mb.
|
11.17.1.2 Sexual abuse by a person in authorityIn DPP v Toomey [2006] VSCA 90 the Court of Appeal drew no distinction between cases of incest and those involving sexual abuse by persons in authority. In that case the respondent brother aged 56 had pleaded guilty to 10 counts of indecent assault, of which 5 were representative counts, committed 30 years ago against boys under the age of 16 years. The Court of Appeal allowed a Crown appeal against a total effective sentence of 27 months of which 21 months was suspended, increasing it to 4 years and 3 months with a non-parole period of 2 years and 6 months. Buchanan JA said at [10]: “The offences were serious. They were committed by a person who was trusted to care for children and given authority over them. He betrayed that trust and abused that authority. The respondent exploited his position by using his power of corporal punishment to cow his victims and secure their acquiescence in his actions. There were multiple offences involving repeated acts over a period of two years. They were not isolated incidents which might be said to be out of character. The effect of the offences on the victims was described by the sentencing judge as "devastating". The early years of their secondary education were blighted, and their later lives affected. Most of the victims moved away from the Church and encountered difficulties in forming and maintaining personal relationships. Some have suffered diagnosed psychological problems. The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long-term effects on their victims, should be severely punished. See Ryan v. The Queen.(2001) 206 CLR 267 at 283 per McHugh J.” Vincent JA said at [18]-[19]: “As Heidgan AJA, adopting an earlier statement of Marks J in R v Sposito [unreported, Court of Criminal Appeal, 08/06/1993, p.4], put it in R v MJ [2000] VSCA 66 at [17]: ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.’ Referring to the circumstances of the matter before him, he continued: ‘The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.’ Although his Honour's remarks were made in the context of a case concerning incest, they are clearly applicable to many other situations and relationships and certainly to those presently before the Court.” Vincent JA continued at [21]-[22]: “On occasions, when imposing sentence I have made mention of the notion of social rehabilitation. In DPP v. DJK [2003] VSCA 109 at [18], for example, I remarked: ‘This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.’ It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.” Nettle JA said at [26]: “I agree with the learned presiding judge and with Vincent JA that cases such as this case can no longer be regarded as exceptional by reason only that the offending occurred a long time ago and that the offender may since have gone a considerable way towards rehabilitation. Regrettably, such cases occur all too frequently.”
“The offences in this case were of a very serious kind. As Callaway JA has explained in R v Ellis (2005) 153 A Crim R 340 at 341, Parliament has made it clear that the essential purpose of the applicable statutory provisions is to protect children and young persons from sexual exploitation, particularly by those who are in positions of care, supervision and authority in relation to them. See also R. v. Howes (2000) 2 VR 141 at [4] per Winneke P and at [29] per Brooking JA and R. v. Coffey (2003) 6 VR 543 at 547 per CallawayJA. But not only were the offences here very serious, the appellant's offending conduct was abhorrent. The appellant was not only in a position of trust and moral and intellectual superiority in relation to the two young complainants, but he was charged with the obligation of protecting them or at least furthering their interests. As a much older person and as their teacher, he appreciated, as her Honour said, that he had considerable influence over the impressionable and vulnerable young girls. X, in particular, must have been vulnerable given that, for some months before the offending conduct, he was her counsellor in relation to her behavioural problems. The appellant callously exploited this position over a considerable period for the purposes of satisfying his sexual appetite and in the course of so doing he effectively debauched the two girls…Instead of protecting the complainants' interests as he should have done, he effectively destroyed their sexual integrity. Not surprisingly, the offending had a significantly detrimental effect on them and their families that is likely to continue for some time. As her Honour pointed out, none of the offending conduct was committed on the spur of the moment but involved, over some months, deliberate and premeditated encouragement of the complainants to satisfy his sexual appetite with the knowledge that they would be compliant with his wishes. In the circumstances, the principle of general deterrence and the need for the court to express denunciation of this offending conduct assumed considerable importance in the sentencing disposition. Thus, notwithstanding that below the Crown may have adopted the position that the offences fell in the middle range of offences of this kind, I think that in the circumstances the sentencing judge was entitled to treat the offending conduct as being very serious [see, for example, R v Bell [1999] VSCA 223 at [16] per Batt JA] and to regard general deterrence and the need for the court to express its denunciation of the offending conduct as being of considerable importance in the sentencing disposition and thus take the view that the conduct called for condign punishment.”
“There can be no doubt as to the gravity of the offences, which were repeated over a period in excess of five years. The respondent exploited his authority and abused the trust placed in him by the community and the families of his victims. Victim impact statements give a glimpse of the long-term emotional trauma caused by the respondent's actions to youths at a most vulnerable period in their lives. It is important that young persons like them should be protected by the law. The objective of general deterrence ought to have been a significant factor in sentencing the respondent. It is also important that the courts clearly denounce crimes such as those committed by the respondent.” Nettle JA added at [18]: “[M]uch of the sentencing judge’s analysis appears to me to be informed by the notion that the respondent has already been substantially punished by reason that he has been denied the faculties of a priest and is now likely to be defrocked…No doubt it is a relevant consideration that a prisoner may have suffered loss of office or profession or trade as a result of his or her offending: that is one of the factors to be borne in mind in determining the level of punishment to be imposed. Equally there can be no doubt that such a loss of office cannot be treated as a substitute for the punishment which the law requires”. In R v FAJ [2011] VSCA 137 the respondent store manager, aged 33 at the time of offending nine years before, had pleaded guilty to 9 counts – some of which were representative – of committing an indecent act with a child under 16 and sexual penetration of a child aged between 10 & 16. The victims were students who were casual employees of the store and were aged 15 & 14. In dismissing his appeal against a sentence of IMP 6y6m/3y, the Court of Appeal said at [7]: “[T]he provision to children of potentially addictive substances in return for sex, with no regard for the adverse consequences, constitutes very serious offending. It can, and often does, result in lifelong damage to those subjected to it. It is selfish and exploitative in the extreme.” Other cases involving child sexual abuse by persons in authority include:
Yüklə 1,78 Mb. Dostları ilə paylaş:
|