SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v Pretorius (No 2)Citation: / [2016] ACTSC 358
Hearing Date: / 14 October 2016
Decision Date: / 18 November 2016
Before: / Penfold J
Decision: / See [40]-[43] below.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic sexual offences – offender found guilty by a jury of one act of indecency on a person under 16 years – plea of guilty to further act of indecency on a person under 16 years entered later – third charge of act of indecency on person under 16 years abandoned – limited evidence of insight or expression of remorse – no relevant criminal history – significance of general deterrence in sentencing for sexual offences against adolescents – suspended sentences of imprisonment and community service order.
Legislation Cited: / Crimes Act 1900 (ACT), s61(2)
Crimes (Sentence Administration) Act 2005 (ACT)
Cases Cited: / RvAD [2014] ACTSC 222
R v AJ [2012] ACTSC 25; 258 FLR 152
R v Djenadija [2015] ACTSC 207
R v DK [2016] ACTCA 7
Rv H [2015] ACTSC 221
R v Kelly [2014] ACTSC, Murrell CJ, 28 April 2014
R v Warnes [2008] ACTSC, Penfold J, 2 October 2008
R v WR [No. 4] [2015] ACTSC 211
R v WR [No. 5] [2015] ACTSC 258
Parties: / The Queen (Crown)
Herman Pretorius (Offender)
Representation: / Counsel
Mr D Sahu Khan (Crown)
Mr J Sabharwal (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Armstrong Legal (Offender)
File Number: / SCC 203 of 2015
The offence
1. Herman Pretorius has been found guilty by a jury of one offence of committing an act of indecency on a person under the age of 16 years between 1 March 2003 and 10 June 2003, contrary to s61(2) of the Crimes Act 1900 (ACT); that offence carries a maximum penalty including imprisonment for 10 years.
2. The jury which returned that verdict was unable to reach verdicts in relation to two other charges of acts of indecency on the same indictment. Not long after the trial, Mr Pretorius pleaded guilty, in full satisfaction of the indictment, to what had been the second offence on the indictment, also, as I noted, an offence of committing an act of indecency on a person under 16.
3. Mr Pretorius had met the parents of the victim around 2001 through their mutual involvement in the performing arts in Canberra. They became friends, and by 2003 Mr Pretorius was a regular guest at the victim’s family home. During this time Mr Pretorius had a sexual relationship with the victim’s mother.
4. The victim was born in 1989 and first met Mr Pretorius when she was around 12 years old. Initially, she simply enjoyed his company finding him funny and charming.
5. However, in early 2003, Mr Pretorius began to behave in a sexualised manner towards the victim and often complimented her on her beauty. When Mr Pretorius was at the victim’s home, she would often lie on his lap. Mr Pretorius would stroke her stomach or back, and sometimes, when nobody else was present, her breasts.
6. By this stage, the victim was 13 years old, and she was initially excited by the sexual interest shown in her by Mr Pretorius. During the trial she said that she had fantasised about him.
7. On the night of the incident Mr Pretorius had dinner at the victim’s home. He had too much to drink and was invited to stay the night in an upstairs bedroom.
8. The victim and Mr Pretorius walked upstairs, and the victim laid out the mattress in the spare bedroom. She got Mr Pretorius a glass of water and switched off the light, but could still see him lying on the mattress. She put the water down, got down onto her hands and knees and leant over Mr Pretorius to say goodnight. As she leant in to kiss his cheek, he put both arms around her. He began to stroke her, and she lay down beside him. Mr Pretorius then kissed her passionately, putting his tongue into her mouth and moaning. That kissing was the first act of indecency.
9. While continuing to kiss her and to moan, Mr Pretorius then put his hand under the victim’s shirt, squeezed both her breasts and tweaked her left nipple. This was the second act of indecency.
10. The entire incident lasted for several minutes.
11. The victim confronted Mr Pretorius in relation to the incident several times in subsequent years. In February 2005, after the victim raised the matter in the presence of others, Mr Pretorius admitted to the victim’s mother that there might have been an incident when he was heavily intoxicated and mistook the victim for her mother. Mr Pretorius then met the victim and apologised for any hurt he had caused her, while saying that he could not remember the incident.
12. Eventually, the victim reported the incident to police in February 2014. Mr Pretorius was charged in May 2015 and released on bail. He has spent no time in custody in respect of these charges.
Evidence
13. As well as the agreed statement of facts, the following material is in evidence before me:
(a) victim impact statements prepared by the victim, her father and her mother;
(b) Mr Pretorius's criminal history; and
(c) a pre-sentence report about Mr Pretorius;
all of which were tendered by the prosecution.
14. The defence did not tender any evidence on sentence.
Objective seriousness
15. In considering the objective seriousness of the offences I have had regard to the following matters.
16. Given the agreed fact that Mr Pretorius had, before the offences, taken to stroking the victim, including sometimes stroking her breasts, it is apparent that he had some sexual interest in her; I am not satisfied that the current offences were premeditated in the sense of being planned, or even in the sense that the particular opportunity to commit them was deliberately contrived, but I am satisfied that Mr Pretorius was sexually interested in the victim before this particular opportunity presented itself.
17. Mr Pretorius was not in a position of authority over the victim, and nor was he in a position of trust in the sense that, for instance, a babysitter is in a position of trust, or a house-guest who has been allowed to share a bed with a daughter of the household (Rv WR [No. 5] [2015] ACTSC 258). On the other hand, a house-guest who takes advantage of his friends’ hospitality to make sexual advances to their underage daughter has certainly, in my view, abused their hospitality.
18. Mr Pretorius was also in a position to know that the victim was entering adolescence at a time when her family's capacity to provide a safe and stable environment might be compromised.
19. On the other hand, I should note that in this case there is no claim that Mr Pretorius made any effort to deter the victim from telling anyone about his actions.
20. The pre-sentence report author reported that Mr Pretorius claimed not to remember committing the offences, but said that they could have happened if he was intoxicated. He was described as minimising his offences, including by reference to the victim “attaching herself” to him.
21. The victim read her victim impact statement in court. She spoke of the strong bond that she had developed with Mr Pretorius prior to the offences, and how she trusted him. She now has great difficulty reconciling her feelings for Mr Pretorius with the way he had manipulated her family and violated her trust.
22. She said that she had initially felt “foolish and at fault” about the offences, and spoke of the damage they had done to her sense of self-worth and to her capacity to form healthy relationships in adulthood. Mr Pretorius's actions had led to behavioural problems during her adolescence, which had in turn affected her relationships with her family, and especially with her mother.
23. She said:
For years, I believed myself unlovable ... that my only value was my sexuality. If a grown man whom my family and I trusted could only want me for my body the rest of my being was irrelevant. The self-deprecation, insecurities and the inability to feel loved caused by his actions impacts on my relationships and being every day.
24. In his victim impact statement, the victim’s father expressed his ongoing feelings of guilt for having exposed his daughter to Mr Pretorius, a man whom, he said, he had trusted and held in high regard. The victim’s father said that Mr Pretorius's actions had damaged his relationship with his daughter, and that his responsibility for bringing her into contact with Mr Pretorius had undermined his ability to offer her guidance in subsequent years.
25. In her victim impact statement, the victim’s mother described the horrific experience of watching the victim struggle with anxiety and depression in the years following the incident. She had initially believed Mr Pretorius's claim that if the incident had occurred, it had been because he had mistaken the victim for her, and this had led to feelings of guilt and self-loathing. The victim’s mother said that these feelings had significantly affected her health and relationships.
26. Although the actual physical contact was not of an especially intrusive kind, the circumstances of these offences, and Mr Pretorius's dismissive attitude, both to his responsibility for the offences and to the victim’s vulnerabilities, in my view put these offences, objectively, not very far below mid-range seriousness.
Subjective circumstances
27. I have also had regard in this sentencing, however, to Mr Pretorius's subjective circumstances.
28. Mr Pretorius is 68 years old. His criminal history consists of a high-range drink-driving offence committed in Canberra in 2003, and a mid-range drink-driving offence in Sydney in 2012. There are no offences relevant to these current offences.
29. Mr Pretorius was born in South Africa, where he grew up as part of a loving family, and lived there until emigrating to New Zealand in 1994 and from there to Australia in 2001. Mr Pretorius has three adult children from a previous marriage living in New Zealand, and a step-daughter with his partner of 11 years, whom he intends to marry later this year. He is tertiary-educated, with a number of degrees, including a PhD. He has worked in the education and drama fields for nearly 50 years, and is currently employed as head of drama at a tertiary college in Sydney.
30. Mr Pretorius reported no physical or mental health concerns, although he has suffered some stress arising from his step-daughter's health problems. He is still a regular consumer of alcohol.
31. The pre-sentence report noted that Mr Pretorius was suitable for a low-level of Corrective Services supervision, but that there may be a benefit in referring him for assessment for the Adult Sex Offender Program and possibly for counselling about alcohol use.
32. Defence counsel noted that Mr Pretorius's age, and the fact that no other accusations of sexual offending have been made against him, suggested that his need to undertake the Adult Sex Offender Program was low.
33. In this context I note the character evidence given in Mr Pretorius's trial by two women who have worked with him in his current position in the college, both of whom said that he was well respected in the college, where many of the students were relatively young women, and that they had never heard allegations of sexual misconduct by Mr Pretorius.
34. On the other hand it seems that Mr Pretorius does not understand the significance of his offences, and even at this age it may be useful for him to have to confront that issue.
35. Obviously, general deterrence is an important issue for offences of this kind, which often go undetected and unreported for many years, or even forever. Personal deterrence may be less of an issue, except for Mr Pretorius's attitude to the offences. In that context it is worth repeating comments I have made in earlier sentencing remarks, first (Rv Warnes [2008] ACTSC, Penfold J, 2 October 2008 (Warnes)), that:
all adolescents are vulnerable, as they work to find their adult identities amid challenges from all directions, including of course the need to struggle with overactive hormones while trying to develop an approach to their sexuality that will serve them well as adults.
It is vital to emphasise, to all adults who are responsible for adolescents, that they must rigorously avoid taking any kind of advantage of the vulnerability of these adolescents.
36. I note of course that Mr Pretorius, unlike the offender in Warnes who was supervising students on camping trips, was not in any sense responsible for the victim, but in my view he was nevertheless obliged not to take advantage of her vulnerability.
37. Secondly (RvAD [2014] ACTSC 222 at [14]):
The fact that young adolescents are capable of developing intense attachments to older people does not justify those older people in taking advantage of such attachments; rather, it puts a responsibility on them not to take advantage.
38. It is worth saying, explicitly, in the circumstances of this case, that there was absolutely no fault on the victim’s part, and that she should not blame herself at all for what happened.
Assistance to authorities
39. As noted, Mr Pretorius pleaded guilty to the second of these two offences, but only after he had been found guilty of the first offence and faced the prospect of a re-trial on the second and a third charge. Avoiding that re-trial is certainly in the community's interests, so there should be some sentencing discount, but it will not be large given that the plea came late, it didn't save the complainant from the experience of giving evidence, and it has already benefited Mr Pretorius through the dropping of the third charge.