HKSAR v. IAN PETER NASH

DCCC422/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 422 OF 2009

----------------------

---------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you have pleaded guilty to three offences of indecent assault, each contrary to section 122(1) of the Crimes Ordinance, Cap. 200.  You admitted the brief facts and I convicted you.  Those charges were Charges 2, 3 and 5 on the indictment.  Charges 1 and 4, which you denied, were ordered to be left on file.  The facts were as follows.

2.  You were a private trumpet teacher.  The boys, PW1 who was X was aged 9 at the time, and PW3, known as Z, aged 8 at the time.  They were your students.  Since autumn of 2006, you have taught PW1 the trumpet.  The lessons were weekly during school term.  On 2 March he complained to his mother that you had been touching his penis during the lessons.  The police were informed.

3.  I turn now to the particulars of Charge 2.  From 4 pm to 5 pm, on or about 3 February 2009, PW1 had a trumpet lesson with you.  This was at the music room of West Island School.  You were alone with the boy.  PW1 was standing to play the trumpet, with you sitting in front of him.  While he played, you touched his penis over his shorts.  You also slipped your hand into his shorts and kept it still, to the right side of his lower waist area, until PW1 finished playing the music.  Whenever PW1 stopped playing, you stopped touching him.

4.  Charge 3:  On or about 17 February 2009, at the same place and time, PW1 had another lesson at West Island School.  PW1 was standing playing the trumpet, with you sitting in front of him.  On and off while PW1 played, you stuck your hand into his underpants and touched his penis.  You also moved your hand on PW1’s lower waist area under his clothes.  When PW1 stopped playing, you would withdraw your hand and start touching again when he recommenced.

5.  PW3 had also been learning the trumpet from you.  He and his elder brother were taught at their home in Mount Butler Road.  On Thursday 20 and 27 November 2008, 15 and 22 January 2009, 12 and 19 February 2009, there were lessons.  PW3 missed the first three lessons.  After his second lesson they were taught separately.

6.  In his last lesson, he stood playing whilst you sat beside him.  Whenever PW3 played, you repeatedly struck your knuckles against his penis in a brushing motion.  This was over his shorts.  Whenever PW3 stopped, you withdrew your hand.  You continuously did this throughout the lesson.  PW3 tried to avoid this by going behind a desk.  However, you drew him back by pushing against his bottom with one hand whilst striking his penis with the other.  On 11 March he informed his father of what had taken place.

7.  Defendant, you are a man of hitherto clear record.  As you know, I adjourned the case for the preparation of a probation officer’s background report, a government psychologist’s report and two psychiatric reports.  Those reports are before me.  They have been explained to you and, I understand from Mr Morley, agreed by you.  I have read and considered those reports.  I note that you do not suffer from any mental illness and therefore a hospital order under the provisions of the Mental Health Ordinance is not appropriate in this case.

8.  Mr Morley on your behalf presented lengthy and persuasive mitigation supported by reports, letters and documents.  You are 33 years of age.  You are in a long-term relationship and you were employed as a relief teacher at West Island School.  You also provided, until these offences came to light, private trumpet lessons.  Since the age of 4, you have suffered from Type 1 insulin-dependent diabetes, which you are well able to control.

9.  I have before me a vast amount of information to assist in the sentencing process.  Mr Morley has provided a private clinical psychologist’s report prepared by Dr Peter W H Lee of Hong Kong University.  This is lengthy, informative and attempts to explain these serious incidents.  The report is based on 12 sessions with Dr Lee and therefore is based on in-depth investigation.  Also, I have a medical report from Dr Clive Cochran in relation to your diabetes.

10.  Additionally, there are numerous letters from your father, your brother, your co-habitee, your stepmother, colleagues, and of course a personal letter from yourself.  I also have the government psychologist’s report, two psychiatric reports and the probation officer’s background report, which I previously referred to.

11.  Mr Morley, with his customary thoroughness, has referred me to relevant aspects of those reports.  Inter alia, Mr Morley expresses your remorse and acceptance that effectively your teaching career is at an end.  He points to your guilty pleas and the consequent sparing of the victims the severe trauma of the witness-box.  Whilst accepting that these offences are serious, involving clear breaches of trust and assaults on young children, he suggests these assaults should be placed at the lower end of the spectrum of seriousness.  Also, the clear findings of both psychologists suggest that you are not likely to be a true paedophile, nor are you likely to re-offend.

12.  The picture that emerges is of a man with problems coping with life but not a man with evil intent.  The common theme running through these reports and letters of support is bafflement as to how and why these assaults occurred.  That you enjoy widespread family support; although your co-habitation is an area of stress and lack of fulfilment, that is clear.  Mr Morley, whilst referring to your diabetes and the problems an immediate custodial sentence will cause, recognises that such a condition cannot be and is not prayed in aid for a different or even reduced sentence.  Realistically, Mr Morley conceded that you have to go to prison but obviously pleads for leniency.

13.  I was referred to the case of Secretary for Justice v Huang Long Wei(?), Court of Appeal Application for Review No. 5 of 2008.  Whilst the sentence in that case is entirely irrelevant to the present matter, the circumstances being totally different, the crucial sentencing considerations for indecent assault on young children were expressed as follows:

(1)  to deter others from committing similar offences;

(2)  to show the abhorrence of members of the public to offences of this nature;

(3) to redress the grievances suffered by the victim and his/her friends and relatives, though it seems to me that the priority is the latter, the relatives.

14.  There is not, nor could there be, any tariff for this kind of offence, given the diversity and range of actions of indecent assault.  These are not easy cases to sentence.  I do accept that you are genuinely remorseful and from what is said in the clinical reports, that it is unlikely that you will re-offend, as you are not assessed to be a paedophile.

15.  Perhaps the most puzzling aspect of the case is that the disgusting acts which you engaged in provided you with no sexual gratification, in the opinion of the psychologists.  In some inexplicable way the touching and the music went together to relieve your inner tension.

16.  The overall assessment presented is that you are mildly depressed, you are totally ineffective at problem solving - and I refer to paragraph 83 of Dr Lee’s report - and you were caught up in a complex and destructive family relationship.  Also you are obsessed by your music.  In short, you present as an inadequate person who suffers from emotional as well as physical disabilities.  That you have sought salvation in the abuse of two young boys is both serious and deeply worrying.

17.  Having considered your problems, I must not and will not lose sight of the fact that I am dealing with serious and disturbing acts of sexual abuse of two young boys, over whom you were a person in authority as their music teacher.  The incidents themselves are not in my opinion to be placed at the lower end of the spectrum as Mr Morley suggests.  Your actions breached the sacred and fundamental position of trust - that of student and teacher.

18.  Nor was this an isolated loss of control; I am dealing with three separate occasions, two involving the same 9-year old boy.  The assaults themselves involved not a brief or passing touch, but a sustained touching, both over clothing and placing the hand inside the boys clothing (Charges 2 to 3), the clear and only interpretation of the facts that these occurred on and off throughout each of the lessons; Charge 5, again a sustained striking or stroking of the boys penis for most of the lesson.  Even when the boy tried to move away, you forced him back so you could continue your evil acts of fondling.

19.  These acts, individually and together, are not minor assaults.  They are deliberate, they are sustained and they are designed to humiliate.  They are acts abhorrent to any right-thinking person; acts which in the long term may have deep-rooted psychological impact on either or both of those young children.  At this point, we do not know.

20.  Whilst I recognise and indeed sympathise with your emotional and physical problems, this court’s first duty is to the abused children.  It is and can never be any form of excuse to say, “I was depressed so I abused a child.”  That is not acceptable.  I accept that you are remorseful.  I accept that you have pleaded guilty, thus sparing the children the trauma of the witness-box.

21.  My approach is to treat this predatory sexual misconduct as a course of misconduct, even though there are three separate offences.  Therefore, I take as a starting point in this case 2 years and 9 months’ imprisonment.  This will be reduced to 22 months for your plea of guilty.  For sparing the boys the trauma of the witness-box, I give an extra 2 months’ discount.  Therefore, you will go to prison for 20 months for each of these offences to be served concurrently.

22.  I also express the view that you should receive intense psychological counselling while serving your sentence.  I also direct that the warrant should remind the prison authorities that you are suffering from diabetes so that there is no misunderstanding as to your medical condition.

23.  Finally, I thank counsel for their assistance in this case.