司法不公

Teacher Robert Emmett avoids jail after filming up students' skirts

A former teacher from Sydney's most distinguished legal family will not go to jail for filming up students' skirts and possessing nearly 10,000 images of child pornography.

Robert Arthur Emmett pleaded guilty in May to filming up the skirts of three teenage girls. He also pleaded guilty to having child abuse material, including three images and seven videos in the most serious classification.

The son of two judges, Emmett is also the grandson of former NSW Chief Justice Sir Laurence Street, who was himself the son and grandson of chief justices. Emmett was working as a mathematics teacher at St Andrew's Cathedral School in the city when he was arrested on August 7, 2013.

In March that year, he had walked from one classroom to another, making two videos of three girls' without their consent, according to a police fact sheet.

Emmett, who was 36 at the time, began talking to the students while manoeuvring his phone at waist height to film their underwear.

One victim said in a statement: "When I think back on his behaviour, he was often looking up the stairs as we walked up and down, and hanging around us too closely at lunch times."

Defence submissions said Emmett had been diagnosed with psychosexual problems best described as "complex paraphilia", with "voyeuristic, paedophile, hebephile and fetishistic features".

The Downing Centre District Court heard on Thursday he was taking medication to suppress his sexual libido.

Judge Ian McClintock, in sentencing, said the child pornography images were "disturbing and depraved". But he also considered Emmett's early guilty plea and his "increasing insight" into the wrongness of his actions.

"He apparently continues on a positive rehabilitative trajectory," Judge McClintock said.

He also considered a report which recommended Emmett serve an Intensive Corrections Order, where he would take part in rehabilitation in the community rather than inside jail. A psychologist, Dr Bruce Westmore, reported sexual therapy programs in jail had long waiting times and Emmett would make more progress on the outside.

Judge McClintock sentenced Emmett to two years' imprisonment but also made an Intensive Corrections Order.

As part of the order, Emmett must continue psychotherapy treatment and be of good behaviour. He was also sentenced to a three-year good behaviour bond for separate offences in which he filmed up women's skirts at railway stations.

The Crown had argued Emmett should serve time in jail rather than receive an Intensive Corrections Order.

(11/9/2015 Sydney Morning Herald)

一個違反誠信的教師，拍攝所教學校女生裙底，無需入獄，我還可以理解，因為司法家庭背景是強而有力的求情因素。若然是單一事件，未必予人強烈的偏坦印象。可是，擁有兒童色情物品，是較為嚴重的罪行，不判即時入獄，完全講不過去。這是明顯司法不公的例子。別忘記，他還犯了在火車站影裙底的罪行。

英國案例R v Mark David Oliver and Others [2003] 2 Cr App R 64把兒童色情物品分成5級(5 Levels)：

“(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality.”

本案的被告藏有那一級別，報導講"three images and seven videos in the most serious classification"，即是第4/5級的，縱使被告認罪，即時判監兩年才恰當，但被告的兩年監，只是Intensive Correction Orders (ICO). 香港沒有ICO這東西，中文可譯作社區服刑(orders of imprisonment served in the community)。不同州有不同規定，新南威爾斯州判囚不超過兩年可以ICO來執行。ICO是從Crimes(Sentencing Procedure) Act裏訂立。因為無需即時入獄，屬於極度仁慈的判法。本案其實在量刑原則上可能犯錯，因為判被名兩年監禁即以3年為判刑起點，給予被告認罪的3份1折扣變為兩年。原則上判刑起點超過兩年就不應考慮ICO.

ICO的判刑同時附加18項強制性的條款，包括：

• the offender is to be of good behaviour and not commit any offence
• the offender is to reside only at premises approved by a supervisor
• the offender is to submit to breath testing, urinalysis or other medically approved test procedures for detecting alcohol or drug use, as directed by a supervisor
• the offender is to undertake a minimum of 32 hours of community service work per month, as directed by a supervisor from time to time
• the offender is to engage in activities to address the factors associated with his or her offending as identified in the offender’s assessment report
• the offender is to submit to a medical examination by a specified medical practitioner, in relation to the offender’s capacity to undertake community service work (inserted by Crimes (Administration of Sentences) Amendment Regulation 2013).

違反者可以改判即時入獄。對本案被告輕判，我覺得最主要的原因是他司法世家的背景。我在春光乍"攝"所干犯的罪行一文也講過，悉尼巴士司機在車上偷拍，即時入獄1年。巴士司機涉及的案情比教師輕微得多，卻要即時入獄，理由好簡單，他不是來自司法世家。人家的老爸是Arthur Emmert(NSW Court of Appeal judge), 老媽是Sylvia Emmert(Federal Circuit Court judge)。窮光蛋學人犯法，活該他鋃鐺入獄。