James Ernest Last

Posted: December 16, 2012 by Serendipity in Photo, Queensland
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Last – James Ernest - Photoa

 

http://www.cairns.com.au/article/2008/03/29/2699_local-news.html

Teacher jailed on sex crimes

Laurel-Lee Roderick

Saturday, March 29, 2008

A CAIRNS judge has dismissed the “ridiculous suggestion” that a Cairns teacher believed he was introducing a Saibai Island boy to traditional customs when he sexually abused him in the mid 1980s.

Darwin man James Ernest Last was jailed for two years yesterday for seven counts of indecent treatment of an 11-year-old boy from March to October in 1983.

But Judge Peter White backed an earlier decision by his Cairns District Court colleague, Judge Sarah Bradley, to give Last’s defence three months to find evidence of such
customs.

Judge Bradley’s decision to adjourn the case on February 7 attracted national publicity. But the sentence date was brought forward when leading anthropologists advised no such customs existed on Saibai Island.

Judge White said Torres Strait Islanders would have been offended by the unfounded claim.

“If the cultural tradition had existed, this does not mean that Queensland law or Queensland courts would give legitimacy to such a cultural tradition, which would be considered unacceptable and indeed barbaric, in some people’s terms, by today’s standards,” Judge White said.

“In my view, Judge Bradley made no such suggestion that was the case.

“Nevertheless, the existence of such cultural consideration was relevant to sentence … because of the defendant’s claim that he was not motivated by any desire for personal sexual gratification.”

Crown prosecutor Peter Feeney said the boy’s parents had sent him to Cairns to further his education.

Last, then aged 37, was the co-ordinator of Aboriginal and Torres Strait Islander courses at Cairns TAFE.

Mr Feeney described how Last had performed oral sex on the boy on five occasions. On the final occasion, Last told the boy “now it’s your turn” and the boy performed oral sex on Last.

Judge White said it was the final incident which proved Last’s suggestion he was teaching him about “men’s business” was “ridiculous”.

Defence barrister Kevin McCreanor said a psychologist had found Last did not have a “pedophilia profile”.

While Last knew his actions were wrong under Queensland law, Mr McCreanor said his client sincerely believed it was a “cultural tradition”.

Judge White said the repeated acts involved physical intimacy and he believed sexual gratification was the “prime motivation”.

 Judge Peter White`s sentencing remarks on James Ernest Last:

On 6 February 2008, the defendant pleaded guilty before Her Honour Judge Bradley to seven offences shortly described as indecent treatment of a child under 17 and under 14.
The offences occurred in a period of approximately eight months between March and October 1983, inclusive.
The offences were contrary to provisions of the Criminal Code which were in force at that time but which have since been substantially amended.
It is unarguably the law that a person charged with criminal offences is to be dealt with in accordance with the law that was in force at the time of the commission of the offences.
One important factor is that at the time of the commission of the offences, the maximum penalty for those offences was seven years imprisonment.
Under the current law, although the offences would be worded somewhat differently, the maximum penalty would be 20 years imprisonment.
The maximum penalty for any offence is relevant to sentencing because it is relevant in fixing the place in the level of seriousness and taking into account other factors of the offences in arriving at a sentence for these particular offences.
The result is that the sentences to be imposed today for those offences committed in 1983 will be substantially less than those which would be imposed if the offences had been committed in the last year or two, while the present law was in force.
On 6 February 2008, a factual issue arose.
The disputed factual issue arose before Her Honour Judge Bradley.
It was submitted on behalf of the defendant that his conduct in relation to the complainant was in pursuit of what he essentially described as a traditional Torres Strait Islander custom, if I could call it that, of men of mature age introducing young boys to matters of sex.
It was submitted on his behalf that it was in order to pursue this traditional custom that he engaged in the intended activity with the complainant and most importantly, that he engaged in this activity without any thought or desire for his own sexual gratification.
Initially, the sentence proceeding was adjourned so the prosecution could obtain evidence as to whether or not there was such a cultural tradition.
It was then adjourned further so that the defence could obtain evidence of the existence of such a cultural tradition.
It is now accepted that there has never been any such cultural tradition among Torres Strait Islander tradition.
It is important that point be emphasised because I would be very surprised if people of Torres Strait Island ancestry would not have been offended by the suggestion …
If the cultural tradition had existed, this does not mean that Queensland law or Queensland courts would give legitimacy to such a cultural tradition, which would be considered unacceptable and indeed barbaric, in some people`s terms, by today`s standards.
In my view, Judge Bradley made no such suggestion that that was the case.
Nevertheless, the existence of such cultural consideration was relevant to sentence not because of the law giving some recognition to such a tradition in the 21st century, but because of the defendant`s claim that he was not motivated by any desire for personal sexual gratification in carrying out his conduct.
That was relevant and it remains relevant.
The existence of the cultural tradition, if it had been found, lent some credibility to that claim.
It was relevant in this way.
A major factor to be taken into account to arrive at the appropriate sentence for any particular offence is what`s sometimes described as the criminality or criminal culpability of a person …
If that feature is absent, it does not excuse that aspect of the offence.
It does not relieve the defendant of the punishment for that offence.
But it does make the defendant less culpable and it may well entitle the defendant to a lesser penalty.
It would only be taken into account if I accepted this defendant was not motivated by any desire for personal gratification in what he did to this boy.
I absolutely reject that suggestion.
Whether or not he was ever spoken to by an elderly Islander back in the 1980s is his own assertion. It can`t be tested because the elderly elder is now deceased and unable to answer for himself.
There was never any assertion to the police that that elderly Islander gentleman spoke specifically of the activities with which the defendant engaged with this boy as being Islander tradition.
There was no suggestion, until today, that this elder asked this defendant to attend to sexual activity with this child in accordance with the Islander tradition.
I reject it.
One only has to look at the conduct to see how ridiculous the suggestion is … that this defendant was engaging in the practice to introduce this boy to Island custom.
There is not the slightest hint of any instruction.
Teaching involves a degree of demonstration. It also involves oral instruction.
During my growing up period in my culture, and I am sure many other cultures, it was usual for a father to explain the facts of life to a son as that son approached his teenage years.
It did not involve physical demonstration.
Here there were only physical demonstrations; no oral instructions.
On six particular occasions, this prisoner sucked the boy`s penis.
What would the prisoner have been showing him… Why did he need to be shown six times?
Perhaps the greatest, most obvious evidence that this activity was carried out for the prisoner`s own sexual gratification was the final incident which was described by the Crown prosecutor as that the defendant sucked the boy`s penis and said to him, “”I`ve sucked you, now it`s your turn.“
He then had the boy perform oral sex on him for a short time…
In my view the motivation for that is obvious – it was his own sexual gratification…
It was the prime motivation for him.
This boy had parents … One would think he might have asked his parents if they approved of him introducing the boy to traditional Islander customs.
In my view, that clear and obvious finding reflects the credit to be given to his defendant for his plea of guilty.
He is entitled to credit for his plea of guilty and I am giving him credit for his plea of guilty.
He has saved the cost of administration of justice and more importantly, it has saved the boy from having to submit to what would have been the embarrassment of coming to court and describing the acts committed upon him…
The proposition that this was done without any thought of sexual gratification, in my view, severely detracts from any credit that should be given to the defendant for his plea of guilty.
He appears to be of otherwise good character.
He has no other convictions for criminal offences.
There is nothing to suggest that he has in any way made a practice of sexually molesting children or boys.
In that respect, this offence was a one-off.
However, it was not a one-off incident of sexual molestation. It extended over eight months and involved six separate occasions, all involving a significant degree of physical intimacy.
These were serious acts of sexual interference with this boy.
I have been particularly referred to the Queensland Court of Appeal case of PAC…
In this case, this boy was aged 11 and from what I gather, had lived all his life on a remote Torres Strait island and was sent far away from his parents…
It was a great undertaking of trust placed in this defendant which was betrayed.
The other matter of some difference between the facts of PAC and this case was PAC was 74 years of age and had a leg amputation after developing cancer in his leg. He was wheelchair dependant.
His case for mitigation of penalty by reason of age and ill health was much greater than this defendant is able to advance.
The sentence imposed in that case was two years imprisonment and it was acknowledged that he would be eligible to apply for parole after serving 12 months.
PAC of course was not entitled to any credit for his plea of guilty because he didn`t plead guilty.
This defendant is.
I am of the view that the age and health considerations taken into account in PAC as compared to a plea of guilty weight each other out.
I am of the view that an appropriate sentence, taking into account the law as it applied at the time is two years imprisonment for each offence.
The sentences are to be served concurrently.
I do not propose to make any other order relating to eligibility for parole.
I declare pre-sentence custody from 29 August 2005 to 6 September 2005 and I declare nine days as time served in respect of the sentences just imposed.

 

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