CRIMINAL CASE NO. 317 OF 2010
COURT: The defendant, a 51-year-old male has been committed to this court for sentence following his plea of guilty, in Eastern Magistracy before Mr Mierczak, to eight charges of indecently assaulting a girl under the age of 16 years, contrary to section 146(1) of the Crimes Ordinance, Cap.200, being Charges 1 to 4 and 6 to 9, and one charge of indecent assault, contrary to section 122(1) of the same Ordinance, being Charge 5.
The offences occurred between May 2008 and March 2010. All except the 9th charged offence occurred in the family home where the defendant lived with his wife and two daughters. The offences the subject of Charges 1 to 4 and 6 to 9 involved the defendant’s eldest daughter, who I will refer to as ‘X’. She was 9 years old when the offences commenced in May 2008, and in March 2010, the date of the last offence, was aged 11.
The 3rd charged offence involved an 11-year-old girl who was a friend of X. I will refer to her as ‘Z’. The offences the subject of Charges 7 and 8 involved another girl who I will refer to as ‘Y’. She was 9 years old at the time and was also a friend of X.
The facts of the offences are repugnant. They involve variously the defendant cajoling X, Y and Z to perform oral sex upon him, sometimes during or after watching pornographic videos and, in respect of Y and Z, involved the defendant paying the young girls money afterwards.
In respect of the offence the subject of Charge 1, the defendant had forced X to have a bath with him, then later, while watching a pornographic video, had asked her to copy the women on the video and perform oral sex. She did so for about one minute. The defendant warned her not to tell anyone of the incident and said he would go to gaol if she did. X then went to bed.
Some time later, the defendant told X that he would pay her girlfriends money if they also performed oral sex on him. X recruited two girls, Z, aged 11, and another young girl, and on the occasion of the 2nd and 3rd charged offences, brought them home with her. The defendant showed all three girls a pornographic video. During the video, the defendant asked X to demonstrate oral sex to the other girls. She then performed oral sex on the defendant. That was the basis of the 2nd charged offence.
Then the defendant took Z to his bedroom and Z performed oral sex on him for one or two minutes. She was 11 years old, as I say, at that time. The defendant paid her $60, and that founded the 3rd charged offence.
The 4th charged offence occurred a few days later. The defendant again watched a pornographic video with X. On this occasion, the defendant told X to remove her clothes and lie on a sofa. X did so and the defendant rubbed his penis on X’s genitals. Following that, he made X perform oral sex on him and then instructed her to masturbate him with her hands and she did so.
The 5th charged offence again involved the defendant rubbing the outside of X’s genitals with his penis. He then watched a pornographic video and, afterwards, again rubbed the outside of her genitals. He ejaculated on her stomach. No condom was used in this or in any other of the defendant’s offences. The defendant again wanted X not to tell anyone and gave her, on this occasion, some money.
Some months after that, X recruited Y and brought her home. She asked Y if she was willing to perform oral sex on her father and Y agreed. X took her to her father’s bedroom. The defendant undressed and instructed X to perform oral sex on him as a demonstration for Y. X did so and then left the room. That was the basis of the 6th charged offence. Y then masturbated the defendant and the defendant fondled her breasts. This went on for about 15 minutes. Y was 9 years old. That formed the basis of the 7th charged offence.
About two weeks later, Y returned to the defendant’s home. The defendant took her to a bedroom where she performed oral sex on him. The defendant fondled her breasts and then gave her $70 or so. That was the basis of the 8th charged offence.
All these offences had occurred when the defendant’s wife, X’s mother, was in the Mainland visiting relatives. Subsequently, the defendant and his wife divorced and the defendant lived separately.
On the occasion of the 9th charged offence, X and her younger sister had gone to the defendant’s new premises. They did this fairly regularly and stayed overnight. During the night, the defendant woke X up while she was sleeping next to her sister and asked her to masturbate him and perform oral sex. She did so. He then made her undress and rubbed her genitals with his penis.
These are truly repugnant offences. It is clear to me that, over the course of these offences, the defendant’s acts had corrupted not only X but also her two friends Y and Z. He had encouraged his daughter to become a procurer of young girls and he had paid all three of the young girls money in return for the acts they performed at his request.
The defendant was in a position of trust and he wholly abused that trust by his treatment of X and her friends. I bear in mind the vulnerable age of the victims and the need to impose a deterrent sentence so as to discourage others from committing the same or similar offences and to give what protection can be given to children in our society against a predator such as the defendant.
I bear in mind that any sentence imposed must clearly reflect the abhorrence our society has for these offences. I bear in mind also the fact that the defendant had taken, as I say, advantage of his paternal relationship with X and had used her to recruit Y and Z and had encouraged all three girls to participate in these offences by the payment of money.
I take into account also the fact that the offences took place over a period of months and would have continued had not X, in May of 2010, told her teacher what had happened. In my view, while the defendant’s history does not suggest he is a serial paedophile, there was obviously some risk of not only these offences continuing, but also of other girls becoming involved.
Another important consideration is the effect these offences must have had on X’s mother and upon the parents of Y and Z. One can imagine the remorse that those parents must feel.
Perhaps more important is the effect on X, Y and Z themselves. I have no information concerning Z, but it is plain that Y has suffered significant adverse long-term effects and that X also has suffered some long-term effects, though to a lesser degree.
The offences fall into three periods. The first was in May 2008 when the offences the subject of Charges 1 to 5 took place. The second was in or about September 2008, when the offences the subject of Charges 6 to 8 took place, and the third period involving the 9th charged offence took place in March of this year.
In my view, there is no benefit in drawing fine factual distinctions as to culpability in respect of the individual offences. Each offence has its own abhorrent features which distinguish it from the others but, in my view, each, for its own reasons, can be said to fall into the same category of acts of extreme moral turpitude, resulting in the moral corruption of a child. This is quintessentially a case where the real question is the totality of the sentence which is eventually imposed.
So far as each offence is concerned, I take a starting point of 5 years’ imprisonment. The only mitigation is the defendant’s plea of guilty. For that, he gets full credit. That results in a sentence of 3 years 4 months’ imprisonment in respect of each offence.
Each offence, other than the paired offences, the subject of Charges 2 and 3 and those the subject of Charges 6 and 7, was committed on a separate occasion and warrants a consecutive sentence as a matter of principle. Nevertheless, the totality of sentence must be considered.
To achieve what I believe to be the correct totality of sentence, I order that the sentences imposed in respect of the offences the subject of Charges 1 to 5 be served concurrently with each other. I order also that the sentences imposed in respect of the offences the subject of Charges 6 to 9 be served concurrently with each other, but as to 2 years 8 months, consecutively to the sentences imposed in respect of Charges 1 to 5.
That is a totality of 6 years’ imprisonment.