COURT: You have been convicted on your own plea and fall to be sentenced in respect of five offences of a sexual nature.
Three of those offences occurred in 2011, in April and November. You were then 17. The offences were one of indecent assault and two of unlawful sexual intercourse. The girl concerned was then 12 years old and was your cousin.
You should know that the maximum penalty prescribed by law for the indecent assault is 10 years’ imprisonment. The maximum sentence for the offence of unlawful sexual intercourse with a girl under the age of 13 years is life imprisonment.
Those offences went undetected and unreported for some while. It is not outside the realms of possibility that you felt confident that you had got away with those offences and I have no doubt that you realised that what you had done was wrong and was a criminal offence. You might still be young and you certainly were quite a lot younger then, but looking at all the reports I have here and the comments, you are obviously no fool.
Unbeknown to you, it seems, in April or May 2012, your cousin actually told your sister what had happened. The reason, it seems, that you were unaware of that is because you then committed the next two offences, the remaining two offences, with your then 13-year-old sister, when you were 18. That resulted in two charges of incest, each of which carries a maximum of 20 years’ imprisonment.
I note that, in respect of the 2011 offences on your cousin, the indecent assault and the first incidence of unlawful sexual intercourse occurred within 24 hours of one another, in April. The 2nd count of unlawful sexual intercourse occurred seven months later, in November. The two offences of incest occurred in July, one day apart.
It is hardly a matter for mitigation but I do notice that the Summary of Facts which you agreed when you pleaded guilty indicates that, on the occasion of the second sexual intercourse with your cousin, you told it would be the final time and it seems, from what I know anyway, that that was.
It appears that, in July, only a fortnight or so after the second offence of incest had been committed, the two girls spoke to an outsider about what had happened to them over the last 18 months or year. You were arrested, I gather, on 20 July and have been in custody since then.
I am not in any way seeking to minimise the serious nature of each of these charges. This was disgusting behaviour on your part and has a real possibility of adversely affecting the lives of both your sister and your cousin. It is certainly going to affect your life because, apart from anything else, every time anyone asks you if you have a criminal record, you are going to have to say ‘yes’ and tell them what it is for.
If you were older than you are, or if the circumstances to which I shall refer shortly were not different, you would be looking at a very substantial period of imprisonment. Indeed, I am quite happy to tell you that when I first just read the charge sheet, my immediate reaction was this was going to be a big and long term of imprisonment. However, I was able to call for a very wide range of reports to assist me in arriving at what I have to decide as being the appropriate sentence in your case.
Your counsel, on your behalf, also provided me with quite a large number of documents which were from family and school and that ilk of person which provided a little insight into your background. Mr Whitehouse also drew to my attention the decision of the Court of Appeal in Wong Kin Wa, which indicated that there is a distinction to be drawn between, in respect of the incest offences, offences committed by a father on his daughter as opposed to a brother on his sister.
The reports which I have received are the usual high standard that one has come to expect in matters of this nature and they show some very specific features in your personal circumstances. The good news from two of them is that the psychiatrist says you do not suffer from any mental illness and the psychologist says that you have normal intellectual functioning and you do not have any full-blown major psychopathology at this stage.
He does go on to say, however, that these offences are an alarming sign that you may soon develop into some sort of deviant sexual interest and he assesses the prospects of your re-offending in similar matters as being moderate to high. I am going to return to his report in a minute.
There is a detailed report on your suitability for admission to detention, rehabilitation or training centre. The assessment officer has confirmed that you are mentally and physically fit for all three of those institutions.
The reports generally show that from a fairly young age, you and your sister lived with your grandparents. The relationship between your parents appears to have been not very good and ended in divorce. You and your sister returned to live with your parents before that happened and, after your mother had left home, you and your sister tended to eat with your grandparents and then return to your own home.
On a fairly regular basis, your cousin joined you on a Saturday night, eating at your grandparents and then spending the night at your home thereafter and it was on those occasions that these offences occurred.
Obviously, your father was a very hardworking man and had to support the two of you as well as himself and, because of the nature of his employment, he obviously was not around as much to provide you with the guidance that might have been hoped. I want to emphasise that that is not said critically; it is merely a fact and part of your personal circumstances.
The intake officer for Correctional Services says that you came from a broken family in which your parents “divorced in his early teens, leaving him under paternal custody. Though he received concern and care from his father, it was doubtful that he was subjected to sufficient control and guardianship, especially in the light of his character development”. We know, as I have just said, that that was because your father was busy working to support you. The report goes on to say you were not a promising student but you were satisfactory and normal in many aspects.
The conclusion of the intake officer is that you are suitable for any of those institutions, although the Young Offender Assessment Panel takes another view.
A singularly sad feature of this matter is that your 13-year-old sister fell pregnant as a result of intercourse with you. As a result of that, she had an abortion. That seems to me to be absolutely obviously the right course to follow, but the idea of having a 13-year-old girl having an abortion is one that would fill anyone with an ounce of sensitivity with horror.
I did emphasise on the previous occasion that I did not want either of the young girls interviewed for the purpose of providing a formal victim impact statement, but the two psychologists under whose supervision they are at the moment have both provided me with reports and comments based upon their sessions with the two girls so far. I hesitate to over-simplify the contents of the reports but it seems to me that each of them says they do not really know what psychological impact the sexual acts will have on the girls in future.
I imagine to predict that is very difficult but I would assume that the wellbeing, psychological and emotional wellbeing, of these girls is going to depend, to an extent, on the continued psychological and counselling care they are receiving, as well as the reaction of their families. They, and you, do seem to have a supportive family generally, although these events might be a rather rude wakeup call to members of your family to be a little bit more alert as to what is going on around them.
The feature that emerges from each of these psychological reports is that each of the girls feels guilty about having got you into trouble for reporting what you did to them. I am glad that they do not appear to be present in court today but I am sorry they will not hear me say that “This was not your fault” and that they have absolutely nothing to feel guilty about. I can only hope that as time goes by, they are persuaded that they must not feel any sense of regret at having disclosed the abuse that you heaped on both of them.
An extraordinary feature is that your cousin has apparently never attended school. Hardly surprisingly, therefore, the psychologist observes that she has the mentality of an 8-year-old. I am left to wonder whether that is why you picked on her first, because you knew she was the weakest link in this chain.
I said I would return to the psychologist’s report and he went on to say: “It is believed that psychological treatment focusing on sexual preoccupation and various other matters may be beneficial to him”. He says that you appear to be motivated to receive the recommended treatment.
I have taken longer than I usually would about setting out your background and the circumstances of the offences because of the course which I intend to follow. The Young Offenders Assessment Panel report recommends imprisonment with clinical intervention as a necessary measure to enhance your sense of law-abidingness. I do not think it could be said to be wrong in principle if you were to be sent to gaol.
I did consider an immediate custodial sentence but suspending it on condition that you had to receive psychological counselling. I have decided against that primarily for the reason that the maximum sentence that can be imposed and then suspended is 2 years’ imprisonment and if you were to be sent to gaol for these offences, that would be inadequate.
I have come to the conclusion, after a very great deal of thought before today about how this matter should be disposed of, which has been reinforced by the submissions that have been made on your behalf today, I believe that the appropriate way to deal with you is to commit you to Training Centre.
A particular feature of that order that I think is important in this matter is that it is an indeterminate period of detention. Under the Ordinance, you will be kept in Training Centre for a minimum period of 6 months. The maximum period you will be detained is 36 months. I want to emphasise that the date of your release is very much in your own hands.
The added feature which I think is important in your case is that after you have been discharged from Training Centre, you are subject to a further 3 years of supervision. If you re-offend in that 3-year period, you can be called back to Training Centre. But in addition to that, the Commissioner for Correctional Services is entitled to impose conditions on you during your period of supervision and I am going to ask the Department of Justice to write to the Commissioner and say that, in your particular instance, he may wish to consider, at the time you are released, whether it is necessary for you to continue to receive psychological counselling.
I can tell you that the point of you having counselling is not to punish you; it is to provide an opportunity for you to get advice from older and more experienced people and to solve any problems which you may be facing at that time. So if the Commissioner does decide that you should continue to receive counselling, do not regard it as something being inflicted on you; it is there to help you.
The other possible benefit of Training Centre is that it would enable you, perhaps, to be reunited with your sister and cousin in a fairly short period of time which might assist them with their feelings of guilt about having told others of your conduct.
Consequently, on each of the five charges, you are committed to Training Centre. All of those orders, obviously, will be served concurrently.