Cleaver v Tasmania

[2018] TASCCA 11

[2018] TASCCA 11

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Cleaver v Tasmania [2018] TASCCA 11

PARTIES:  CLEAVER, Aaron John
  v
  STATE OF TASMANIA

FILE NO:  CCA 744/2018
DELIVERED ON:  22 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  17 April 2018
JUDGMENT OF:  Wood J, Pearce J, Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Two and a half years' imprisonment with a non-parole period of 18 months for aggravated sexual assault and sexual intercourse with a young person – Age disparity of 10 years – Appellant intellectually impaired – No overt resort to emotional pressure or manipulation – Sentence manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  P Monk
             Respondent:  H Denton
Solicitors:
             Appellant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2018] TASCCA 11
Number of paragraphs:  44

Serial No 11/2018
File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
PEARCE J
MARSHALL AJ
22 August 2018

Orders of the Court

1. Appeal allowed.

1. Sentence of 2½ years' imprisonment, imposed on 2 March 2018, quashed.

1. Appellant sentenced to 12 months' imprisonment from 23 February 2018.

1. Appellant not to be eligible for parole until he has served 6 months of that sentence.

Serial No 11/2018
File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
22 August 2018

1. I agree with the conclusion reached by Pearce J and Marshall AJ that the sentence is manifestly excessive and that the appeal should be allowed.  I agree with the reasons of Pearce J and with the orders proposed by his Honour. 

2. In relation to the argument regarding the well established principle in R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ, I consider that the comments of the learned sentencing judge, when taken in context, should not be read as offending that principle.

File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
22 August 2018

1. This is a sentencing appeal. The appellant pleaded guilty to one count of aggravated sexual assault and one count of sexual intercourse with a young person. On 2 March 2018 he was sentenced by Slicer AJ to imprisonment for 2½ years from 23 February 2018, with eligibility for parole after having served 18 months. His Honour ordered that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2005 place the appellant's name on the register under that Act and that he comply with the reporting obligations under that Act for five years.

2. The sole ground of appeal is that the sentence is manifestly excessive.

The criminal conduct

1. Both crimes were committed against the same female complainant. At the time the appellant was aged 26 and the complainant was aged 15 or just 16. They both lived in or near a town in regional Tasmania and knew of one another through friends and acquaintances. Until late 2016 they had little contact. However, at about that time, the complainant added the appellant as a "friend" on social media and they began to exchange messages. They communicated frequently between 14 March 2017 and 7 June 2017. The substance of what she later told the police was that before she got to know the appellant, she had no-one to talk to, was having a hard time at home and at school, and had low self-esteem. She came to trust the appellant and they sent internet and text messages to each other about their thoughts and feelings. Their on-line and phone relationship developed to the extent that she sent him nude photographs of herself and he sent her images of his penis.

2. After they became closer he asked to meet. At first she refused because she had a boyfriend, but she then agreed. They met in person on only three occasions, all between 14 March 2017 and 18 May 2017. There was sexual contact between them each time. On the first occasion she "snuck out" of the home in which she lived with her mother at about 11pm. They met at a park. They talked, then hugged and kissed and he touched her crotch over her clothing. No charge arises from that conduct. They met for a second time between two and four weeks later. Again, she left her home some time between 11 pm and midnight. On this occasion, after they had hugged and kissed and touched, she undressed. He touched her breasts and penetrated her vagina with his finger or fingers. That is the aggravated sexual assault. He suggested that they have sexual intercourse but she declined and walked home.

3. The next meeting occurred another two weeks or so later. They met at the park. On this occasion the sexual contact between them progressed to unprotected vaginal sexual intercourse. After the intercourse she dressed, they talked and she walked home.

4. Between each meeting the complainant and the appellant exchanged messages on social media and by phone text. The messages are of an intimate nature, expressing mutual love and affection and re-assurance.

5. There were no further meetings between them because, by 6 June 2017, the complainant learned that the appellant was in a relationship with another female. The complainant reacted badly. She sent phone messages to the appellant threatening to kill herself. She told him she was going to the police. She took an overdose of Panadol, although fortunately suffered no lasting effects. Her mother quickly learned of what had happened and confronted the appellant. On 8 June 2017 the police were notified. The complainant's victim impact statement is to be treated with the required circumspection, but it describes the type of impact which commonly arises from offending of this nature. It reveals that she had kept her relationship with the appellant secret, that after it ceased she felt worthless and less trusting of people, angry and depressed. Her comment that she had been "self-harming more often than I did before" suggests a further impact of the appellant's conduct, but also that it was not the only problem in her life.

6. It also emerged that the appellant had sent one of the intimate photographs of the complainant to his former partner who, on 11 June 2017, contacted the complainant about it.

7. The appellant was interviewed by the police on 13 June 2017. He admitted that he knew the complainant's age before they met, but denied the sexual conduct. The sentencing judge was also told of messages sent to the complainant by the appellant after she confronted him, demonstrating his concern that the complainant's mother was looking for him, and suggesting that as a result of what the complainant had disclosed he may go to prison. One message said:

   "Why go to the cops about me though … im waisting my time tjanks to ever obe im gonna go to jail" [sic].

The appellant's personal circumstances

1. By the time of the sentencing hearing the appellant was 27. He had no relevant prior convictions. He came from a stable and supportive family background and lived with his parents until after these crimes. He had moved to Hobart because of local ill-feeling against him, and was living with a new girlfriend who was 18. He did not abuse alcohol or drugs, but was an occasional cannabis user. He had an on and off relationship with the mother of his daughter, but conflict between them meant that he had only occasional contact with his child. He completed year 10 at school, but did not perform well. A report from a clinical psychologist, Damien Minehan, disclosed that the appellant had a full scale IQ of 72, placing him within the borderline range of intellectual functioning, falling in the lowest 3% of similarly aged individuals. He was physically healthy, but had exhibited some depressive symptoms and was being treated with anti-depressant medication. In Mr Minehan's view, the appellant had some emotional and social difficulties arising from his low cognitive function, but did not suffer from major depression or any other mental illness, or any personality disorder, and his depressive symptoms were not a significant factor in his offending.

2. Although the appellant had not held paid employment for some years the learned sentencing judge was told that work had been arranged through an employment agency for when the court proceedings were finalised. His counsel submitted to the sentencing judge that the appellant had genuine feelings for the complainant and, although he realised her age, he continued to associate with her because he enjoyed her company. The submission is consistent with Mr Minehan's report, which suggests that the defendant's low cognition led him to be somewhat socially isolated, and more likely to interact with others younger than him.

3. In Mr Minehan's opinion, the appellant would benefit from education about age of consent, consent and appropriate use of social media. However few of the factors indicative of increased risk of future sexual offending or violence were present. Reduction of the risk meant, in his case, his engagement in pro-social activity such as employment, offence specific education and social skills training.

The sentence

1. In his sentencing remarks, the learned sentencing judge paid particular attention to the terms of the numerous phone messages sent by the complainant to the appellant during the relevant period, many of which were read to his Honour. His Honour plainly took the view that they demonstrated the complainant's emotional attachment to and trust in the appellant. His Honour remarked:

   "He was concerned for himself rather than the complainant after the sexual acts. He used the emotional turmoil of a young girl to obtain his own objective."

2. His Honour continued:

   "Use of the Internet to attract a young girl is an aggravating factor. Professor Warner's analysis of the range of penalties relevant to sexual misconduct involving underage persons, Sentencing in Tasmania, 2nd ed, 11.419, Tables 14–16, and aggravated sexual assault, 11.425, Table 17, are of assistance, but the analysis predates the increased use of social media as a means of attracting the vulnerable and which ought impact on the assessment of penalty. In this case the means of communication and the means of identifying a possible relationship are cogent and relevant. The Court regards the conduct as being within the median range with an increase due to the means of contact which requires the factor of general deterrence for the misuse of social media.

Manifest excess

1. An appeal on this ground cannot succeed unless material error is demonstrated: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321, per Kirby J at [57]–[60]. Where specific error is not alleged, the appellate court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed is "unreasonable or plainly unjust": see Dinsdale v The Queen and Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [25]. I repeat my explanation of the principles which limit appellate intervention in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, at [8]:

   "It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

2. As was recently re-stated by the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, the discretionary nature of the judgment required of a sentencing court means that there is no single sentence that is just in all the circumstances.

Was this sentence manifestly excessive?

1. The factors relevant to assessing the gravity of sexual offences against young persons and children were reviewed by this Court in Director of Public Prosecutions v Harington [2017] TASCCA 4 at [68]-[69]. There are some factors present in this case which entitled the sentencing judge to take a stern view of the appellant's crimes. There was an age difference between the appellant and the respondent of 10 years. It was apparent from her communications to him before the sexual conduct that she was emotionally vulnerable. The appellant told the police when interviewed that the complainant was "cutting herself" and her "ex-boyfriend had been harassing her". She became emotionally attached to him, even before they met in person. He wanted their contact to be kept secret from her mother. As the learned sentencing judge pointed out, social media provides an opportunity for those with improper motives to illicitly get to know and befriend young persons. The provisions in the Criminal Code concerning the consent of young persons to sexual conduct are in place to protect children from decisions which they do not have the maturity to make, and from adults who seek to take advantage of them. The consequences for a young person of engaging in premature sexual relations can be detrimental and damaging. As was explained in Harington, at [75], protection from harm is a fundamental purpose of the relevant provisions of the Code, and the prohibition on sexual acts with children is founded on the presumption of harm. The complainant suffered, and continues to suffer, an emotional impact, and other effects may not emerge until much later. There was a risk of pregnancy although no pregnancy resulted. The appellant did not demonstrate immediate remorse. He sent the messages to the complainant critical of her disclosure and complaint to the police, and when interviewed, denied the conduct. The terms of his communications make clear that, despite his intellectual limitations, he appreciated the criminality of his conduct. All of those factors made imposition of a sentence of actual imprisonment appropriate.

2. Counsel for the appellant referred to other sentences in this State for sexual intercourse with a young person. The cases are referred to in Marshall AJ's reasons. I do not find them of particular assistance, although they suggest sentences less than the sentence imposed in this case for more serious cases. The circumstances of each case vary widely. No range is established. As counsel for the respondent correctly points out, even if a range was established, it does not mean that the upper or lower limits of the range are correct: TGW v Tasmania [2017] TASCCA 10. The consistency that is sought is not "numerical equivalence", but consistency in the application of the relevant legal principles: Le v Tasmania [2017] TASCCA 21 per Wood J at [5] after referring to R v Kilic [2016] HCA 48, 91 ALJR 131; Hili v The Queen [2010] HCA 45, 242 CLR 520 at [49] and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [304].

3. Nevertheless, with due allowance for the broad discretion to be allowed the sentencing judge, I have reached the clear view that the sentence imposed is manifestly excessive. Manifest excess is plainly apparent. The sentence is disproportionate to the gravity of the crimes in light of the objective circumstances, and was far in excess of that which was required to reflect the moral culpability of the appellant: Veen v The Queen (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; Hoare v The Queen (1989) 176 CLR 348.

4. The disparity in age between the appellant and the complainant was ameliorated to some extent by his intellectual impairment. The imbalance of power arising from the different age and level of maturity was to be viewed in that light. The age of the complainant was not such as to attract the need for a particularly harsh sentence, as it would have if she had been very young. Although the sentencing judge referred to the appellant as an "opportunistic predator" there was no challenge to the proposition that he held affection for the complainant, and that he was not motivated to cultivate the relationship only to take advantage of her and facilitate the crimes. His conduct was not of the type which commonly attracts the description of "predatory", although there was little doubt that sexual gratification was a strong motivation. She demonstrated that she was able, on at least one occasion, to refuse sexual intercourse. The on-line contact between them was mutually initiated although he initiated the personal meetings. He did not use inducements or alcohol or drugs to facilitate the sexual conduct. There was no actual or threatened force. Although underlying or implied pressure to engage in sexual conduct almost always exists in cases like this, there was no overt resort to moral, social or emotional pressure or manipulation or deception. On the material before the sentencing judge, the appellant's limited intellect and social skills made resort to manipulation or deception unlikely. The criminal conduct was limited to two occasions over a relatively short period. The appellant will be subject to the reporting conditions under the Community Protection (Offender Reporting) Act 2005 which will have some effect as extra-curial punishment: Mulholland v Tasmania [2017] TASCCA 2.

5. Mitigation arose from the appellant's plea of guilty. It facilitated justice and meant that the complainant avoided the additional trauma of having to give evidence. The complainant was aware from a relatively early stage that she would not be required to attend court or give evidence.

6. With respect to the sentencing judge, a head sentence of imprisonment for 2½ years is far more than was reasonably required to meet the sentencing aims of punishment, denunciation, vindication of the victim and general and specific deterrence. The harshness of the sentence is made even greater by the imposition of a non-parole period of 18 months, meaning that the effect of the sentence was equivalent to imposition of a head sentence of imprisonment for three years. Sometimes the relevant sentencing considerations may justify imposition of a non-parole period greater than the minimum, even for a person with no relevant prior convictions. This is not such a case.

7. For those reasons I would allow the appeal and set aside the sentence.

Re-sentencing

1. The factors which have been referred to in these reasons inform my view on re-sentencing. I would sentence the appellant to imprisonment for 12 months. I would allow for parole and order that he not be eligible to apply for parole until he has served half the sentence. I would not interfere with the sentencing judge's order under the Community Protection (Offender Reporting) Act 2005.

File No CCA 744/2018

AARON JOHN CLEAVER v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARSHALL AJ
22 August 2018

1. The appellant was convicted of one count of sexual intercourse with a young person under the age of 17, contrary to s 124(1) of the Criminal Code, and one count of aggravated sexual assault, contrary to s 127A of the Code.  He was sentenced to serve a period of two years and six months' imprisonment with effect from 23 February 2018.

1. The appellant has filed a notice of appeal in which he contends that the sentence of two years and six months' imprisonment was manifestly excessive in all the circumstances.

Background facts

1. Counsel for the parties are agreed that the facts are set out in the following summary appearing at pars 7 to 20 of the appellant's outline of submissions:

   "7… In summary the Appellant, aged 26, became friends with the Complainant through Facebook in late 2016-early 2017. The two corresponded through Facebook and Snapchat and via text message between 14^th March 2017 and 7^th June 2017. The two developed a mutual friendship through social media. They met in person on three occasions between 14^th March and 18^th May 2017.

   8On the first occasion, the two arranged to meet … The Complainant snuck out at 11.00 pm and walked there. They had a conversation, and the Appellant hugged her and kissed her, and she kissed him back. He touched her on the crotch over her clothing. The Appellant was not charged with conduct from this incident, but it was referred to in the Crown Statement of Facts for context.  The contact was consensual.

   9They met for a second time approximately 2-4 weeks after the first, at a similar time of night.  The two hugged and kissed, the Appellant undid her bra, touched her breasts and 'fingered' her.  He tried to have sex with her, but she didn't want to.  She put her clothes back on, and after some talking she returned home on foot.  This related to the count of aggravated sexual assault. The contact was consensual.

   10The final meeting occurred approximately 2 weeks after the second. He cuddled and kissed her and undid her bra. She got undressed, he 'fingered' her. She was on top of him, and they had unprotected sexual intercourse. Afterwards, she got dressed and sat on his lap and they cuddled and talked. They hugged and kissed goodbye, and she walked home.  She did not see him again. This related to the single count of sexual intercourse with a young person under the age of 17.  The contact was consensual.

   11At a point in time after this last meeting, It became apparent to the Complainant that the Appellant had formed a romantic relationship with another person.  The Complainant took an overdose of Panadol, and told her mother that she had been seeing the Appellant.  The Complainant's mother confronted the Appellant about the relationship, and he told her he was in a relationship …  The Complainant and her mother reported the matter to Police on 8^th June 2017.

   12On 13^th June, the Complainant was interviewed by Tasmania Police, where she outlined the three occasions that the two met in person, plus additional details of their relationship.  She told police that 'it turns out he [the Appellant] didn't care about her [the Complainant], he was talking to other girls and had a girlfriend.

   13Text messages sent between the Appellant and Complainant were disclosed and are at AB 4-8. One text message from the Complainant stated:

   'Just letting you know I'm going to the police for an interview today. You get what you fucking deserve. I hope your [sic] happy with yourself because you don't give two fucks about me. …, but guess what I have someone who actually cares about me, hope your [sic] happy for fucking my life up.'

   14The Complainant had disclosed details of her relationship with the Appellant to a friend … The Complainant's grandmother said she was aware of the relationship, and that the Complainant had told her that she would sneak out and meet the Appellant.

   15The Complainant also told her cousin … that she 'really liked' the Appellant, and disclosed that they had unprotected sex, and had met at the park more than once and did 'stuff'. She told [her cousin] that the Appellant had stopped talking to her, and she got depressed.

   16The Appellant told his ex partner … about his relationship with the Complainant, and he sent nude photos of the Complainant to her. … confronted the Appellant about their relationship, due to the Complainant's age. … contacted the Complainant on 11^th June through Facebook, and told her that the Appellant had shown her naked photos of the Complainant.

   17The Appellant was spoken to by Tasmania Police on 15^th June 2018. He gave an interview, and made some admissions to Police, although denied the conduct the subject of the indictment.

   18He said that he was 26, and met the Complainant through Facebook, when he added 'a few' people as he wanted to make more friends. The Complainant was having a hard time, she was cutting herself and her ex-boyfriend was harassing her, and he tried to help her.

   19He believed the complainant was over 16 as her Facebook profile made her 18-19.  He developed 'feelings' for her, and they sent nude pictures to one and other.  He found out she was aged 16 before they met face to face.

   20In relation to the first meeting, he gave a similar version to the Complainant, but denied touching her crotch.  He said that she had wanted to have sex and he told her 'no.'  On the second occasion, he stated that they hugged and talked, and she wanted to have sex but he told her they couldn't. She grabbed his penis, and he pushed her away in shock. He denied putting his fingers in her vagina.  He denied having sex with her on the third meeting. He admitted grabbing her bottom and breasts, and admitted this was in appropriate."

Manifestly excessive ground

1. An appellate court will only interfere with a sentence on the basis that it is manifestly excessive or inadequate if the sentence imposed is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ. It must be shown that the sentence is so wrong that it could only be the result of some undefinable error in the exercise of judicial discretion: Bresnehan v The Queen A78/1992, [1992] TASSC 55 and Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J.

Mitigating factors

1. There were several mitigating factors in favour of the appellant.  He is of low cognitive function.  The sexual contact between the appellant and the complainant was consensual.  The relationship ended prior to its detection by the police.  The appellant pleaded guilty, albeit not at the first opportunity.  The initial contact with the complainant took place when her social media profile suggested that she was 18 or 19 years of age, although the appellant was aware of the complainant's age before the two first met.

Aggravating features

1. It should have been apparent to the appellant that the complainant was vulnerable, having regard to text messages from her in which she spoke of self-harm.  There was also an age disparity of 10 years between the appellant and the complainant, notwithstanding the appellant's low cognitive functioning.

Manifestly excessive

1. The State concedes that in light of the factual background and aggravating features, the sentence imposed was at the higher end of the permissible range, but not manifestly excessive.

2. Counsel for the appellant referred to the fact that there have been 20 sentences for engaging in sexual intercourse with a young person under the age of 17 in the last five years, not counting the current one. Counsel observed that of those sentences, eight have involved the imposition of actual imprisonment, and 12 have been dealt with by either a wholly suspended sentence or other non-custodial penalty.  In her outline of submissions at par 29, counsel for the appellant referred to seven of the above cases as follows:

   "aState of Tasmania v RRY 18^th December 2017. In this case, the defendant pled guilty to 2 counts sexual intercourse with a person under the age of 17 years. There were two female complainants, aged 13 and 14 years and the offender was a male aged 24. In relation to the first complainant, they met through social media, and when they met in person he drove her to his house and then had vaginal sexual intercourse. In relation to the second complainant, the two met on social media and met in person on 3 occasions – the first two occasions involved kissing, and the final occasion involved vaginal sexual intercourse. He had similar prior convictions, including one count of indecent act directed at a young person under the age of 17, two counts of sexual intercourse with a young person under the age of 17 and possession of child exploitation material. Those charges related to females, aged 12 and 14. He was sentenced to 4 years' imprisonment with a non parole period of 2 years.

   bState of Tasmania v FWR 30^th June 2017. In this case, the offender pled guilty to 2 counts of sexual intercourse with a young person and 5 counts of indecent assault. These crimes were committed against 2 young men, aged 16. The offender was aged 55. The young men were friends with the offender's nephew, and attended his home and consumed large quantities of alcohol. He grabbed their penises after they urinated, on two occasions. Shortly after this second occasion, he knelt in front of one of the complainants and placed his mouth over his penis. The complainant pulled away and left. Later, the same complainant went to urinate again and was followed by the offender, who knelt in front of him, held him by the waist and fellated him until the complainant ejaculated. This caused the complainant to be confused, overwhelmed and he was crying. He phoned his girlfriend and left. The other complainant who had earlier had his penis grabbed twice, stayed at the home and slept on a mattress. The offender approached him, placed his hands under his clothing and started to touch his penis. The complainant forced his hand away and the offender touched his buttocks over his clothing. He had no prior convictions. He was sentenced to a term of imprisonment of 2 years with a non parole period of 12 months.

   cState of Tasmania v [S] 12^th May 2015. The offender pled guilty to 9 counts of sexual intercourse with a young person. There were 3 male complainants, and the offender … She had sex with them in various places, on some occasions at [location].  The offending was repeated over a number of years. ....  She had no prior convictions.  She was sentenced to 2 years' imprisonment with 8 months suspended, with a non parole period of 8 months.

   dState of Tasmania v KWEF 14^th December 2015.  The offender was charged with two counts of maintaining sexual relationship, plus one additional count of sexual intercourse with a young person under the age of 17. The circumstances are of significant seriousness, due to the maintaining charge.  This sentence is included for completeness, but its circumstances are so different that it of little use. He was sentenced to a term of imprisonment of 6 years, cumulative to a sentence being served for similar crimes in Victoria.

   eState of Tasmania v CLC 18^th August 2015. The offender pled guilty to 2 counts of sexual intercourse with a young person. He was aged 26, although pretended to be 18. The complainant was 14, although initially pretended to be 17. By the time the crimes occurred, he was aware of her age but she was not aware of his.  She slept overnight at his house on over 20 occasions, and the charges relate to the last 2 acts of intercourse.  No contraception was used and the offender ejaculated on each occasion.  He had prior convictions for similar conduct where he had oral sexual intercourse and vaginal sexual intercourse with another 14 year old girl when he was aged 21. He was given a suspended sentence for those crimes, which he breached by committing the fresh offences. The 5 months associated with that sentence was activated, and he was sentenced to a cumulative period of 9 months' imprisonment for the fresh offences, with a non parole period of 6 months.

   fState of Tasmania v [P] 7^th August 2014. P was aged 41 and the complainant was aged 15. She was estranged from her family. She met P at a party, and he told her he was aged 26. When he left the party, he exchanged phone numbers and Facebook details with the Complainant and her friend, and contacted both. P offered incentives to the complainant, put money in to her bank account and purported to transfer her numerous assets including houses and vehicles to be held until she turned 18. A week after this 'transfer' the two met at a hotel and drank alcohol together. P initiated sexual contact with the complainant, who was reluctant but proceeded to have vaginal sexual intercourse. The matter was reported to the police some weeks later. P had relevant prior convictions, including aggravated sexual assault and rape against a 16 year old complainant, and maintain a sexual relationship with a 16 year old complainant. P was on parole for sexual offending when he committed the subject crime. He was sentenced to 6 months' imprisonment, cumulative upon the sentence he was serving.

   gFinally, in State of Tasmania v EJR 8/12/2014, the accused pled guilty to four counts of aggravated sexual assault, three counts of indecent assault, one count of indecent act with a young person under the age of 17 years and one count of sexual intercourse with a young person. He was aged 22 and the complainant was 12.  There were various occasions where sexual activity occurred between the two, including oral sexual intercourse.  The girl was vulnerable, and was known by the offender to self harm.  He was sentenced to a term of imprisonment of 2 years with a non parole period of 12 months."

3. Counsel for the appellant submits that in the abovementioned cases there were aggravating features which increased the need for personal deterrence.  These included:

   ·     multiple complainants;

   ·     significant age differences;

   ·     young complainants;

   ·     vulnerable complainants;

   ·     relevant prior convictions;

   ·     non-consensual acts;

   ·     offering of enticements or benefits.

4. Counsel for the appellant submits that in 13 other cases relating to the crime of unlawful sexual intercourse with a young person, there were a wide variety of factors that led to wholly suspended sentences of imprisonment or other non-custodial penalties.  These included:

   ·     the age of the complainant (being close to the age of consent);

   ·     the lack of age disparity, or the young age of the offender;

   ·     lack of prior convictions;

   ·     the act being committed in an ongoing consensual relationship;

   ·     continuation of the relationship once the complainant reached legal age;

   ·     a belief that the complainant was of legal age (at least at the beginning of the relationship).

5. Counsel for the appellant submits that no aggravating features were present.  For the reasons expressed at [32] I do not consider that to be an accurate statement.  However many of the other features of cases where actual imprisonment was imposed were missing from the current circumstances.  There was a single complainant, there were no prior convictions, the acts were consensual and no enticements or benefits were offered to the complainant.

6. The sentencing judge refers to the "conduct as being within the median range with an increase due to the means of contact which requires the factor of general deterrence for the misuse of social media".  Counsel for the appellant submits that the sentencing judge thereby erred.  The appellant says that there was no misuse of social media.

7. Counsel for the appellant contends that communication through social media is commonplace and has not been previously raised as an aggravating factor. The appellant became friends with a number of people on social media, including the complainant, and believed that the complainant was aged 18 when they initially made contact.  The appellant did not become friends with the complainant on Facebook with a view to entering into a sexual relationship with her. In his report, clinical psychologist, Mr Minehan, said that the appellant uses social media "as a more comfortable way to interact with people and to make new connections.  Given his level of social functioning, he may be more likely to interact with others younger than him".

8. Counsel for the State contends that there was grooming of the complainant by the appellant. However this appears to have been effected by text messaging rather than the use of social media.  As counsel for the appellant said, it is not suggested that the appellant groomed the complainant through social media.  The appellant was not charged under s 125D of the Code with communicating with intent to procure a person under the age of 17 years.  Counsel referred to R v De Simoni (1981) 147 CLR 383 at 389, where Gibbs CJ referred to the principle that no one should be punished for an offence in respect of which he has not been convicted. At 389 his Honour went on to say:

   "… a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

9. Counsel for the appellant submits that the sentencing judge increased the sentence for conduct that, if present and proved, would have given rise to an additional charge.

10. The learned sentencing judge appears to have considered that the appellant was communicating with the complainant with intent to procure her to engage in an unlawful sexual act.  In so doing his sentencing discretion miscarried for the reasons explained by Gibbs CJ in De Simoni.

11. Counsel for the appellant also submits that the sentencing judge placed little to no weight on the appellant's low cognitive function and how it affected his conduct.  Counsel contends that the appellant's low functioning was relevant to his level of criminality and his conduct generally.  The sentencing judge noted that the appellant undertook a clinical psychological assessment in which he was assessed as borderline on the Wechsler Adult Intelligence Scale.  At no stage does the sentencing judge refer specifically to the appellant's low cognitive functioning.  However no submission was put to the sentencing judge that the appellant's moral culpability was lessened by his low cognitive function.

Conclusion

1. Having regard to the foregoing, and especially the issue addressed in De Simoni, the sentence imposed by the sentencing judge was manifestly excessive.  I have read in draft form the reasons of Pearce J and agree that the sentence he proposes is an appropriate one in all the circumstances.