Director of Public Prosecutions v Cook

[2024] ACTSC 379

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Cook

Citation: 

[2024] ACTSC 379

Hearing Dates: 

17 September 2024

Decision Date: 

27 November 2024

Before:

McWilliam J

Decision: 

Offender sentenced to a term of imprisonment of 1 year and 17 days to be served by way of an intensive correction order.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – use carriage service to groom a person under the age of 16 – where offender suffered severe cognitive impairment and associated disabilities from birth – Verdins principles applied – moral culpability significantly reduced – where offender not an appropriate vehicle for general deterrence – where risk of reoffending low and rehabilitation prioritised – intensive correction order made

Legislation Cited: 

Crimes Act 1900 (ACT) s 55(3)

Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 17A(1), 20(1)(b)(iii), 20AB

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 11(5), 33, 33(1), 34A, 35(3)

Criminal Code Act 1995 (Cth) s 474.27(1)

Cases Cited: 

Azzopardi v The Queen [2011] VSCA 372; 35 VR 43

DPP v Doughty [2023] ACTSC 397

R v Garay (No 4) [2022] ACTSC 138

DPP v Gilbey; DPP v Goodwin [2024] ACTSC 265

DPP v Gleeson [2022] ACTSC 309

DPP v Gleeson (No 2) [2022] ACTSC 311

DPP v JJ (No 2) [2024] ACTSC 74

DPP v Moala (No 3) [2023] ACTSC 306

Forster-Jones v The Queen [2020] ACTCA 31

Hili v The Queen [2010] HCA 45; 242 CLR 520

Johnston v The Queen [2017] NSWCCA 53

Laipato v The Queen [2020] ACTCA 35

Markarian v The Queen [2005] HCA 25; 228 CLR 357

McLeod v The Queen [2018] ACTCA 59

Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99

MT v The Queen [2021] ACTCA 26; 17 ACTLR 22

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

Robertson v DPP [2024] ACTCA 26

R v Bredal [2024] NSWCCA 75

R v CO [2017] ACTSC 391

R v De Leeuw [2015] NSWCCA 183

R v De Simoni (1981) 147 CLR 383

R v Forrest (No 2) [2017] ACTSC 83

R v Guode [2020] HCA 8; 267 CLR 141

R v Horton-Hegarty [2018] ACTCA 22

R v Jones [2004] VSCA 68

R v Kamara [2016] ACTSC 294

R v Kennedy [2021] ACTSC 80

R v Kilic [2016] HCA 48; 259 CLR 256

R v Lidden [2024] ACTSC 297

R v Lindsay [2020] ACTCA 25

R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159

R v Miller [2019] ACTCA 25; 279 A Crim R

R v QI [2016] ACTSC 188

R v Ralston [2020] ACTCA 47

R v Summerfield [2018] ACTCA 20; 273 A Crim R 45

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269

R v Whittaker [2021] ACTSC 189

Tector v The Queen [2008] NSWCCA 151; 186 A Crim R 133

Parties: 

Director of Public Prosecutions

Harrison Cook ( Offender)

Representation: 

Counsel

M Dyason ( DPP)

B Morrisroe ( Offender)

Solicitors

Director of Public Prosecutions (ACT)

Tim Sharman Solicitors ( Offender)

File Number:

SCC 139 of 2024

McWILLIAM J:          

1․The offender in this matter, Mr Harrison Cook, has pleaded guilty to the following two offences:

(a)Engaging in sexual intercourse with a young person under the age of 16, contrary to s 55(3) of the Crimes Act 1900 (ACT) (CAN 7099/2023) (sexual intercourse offence); and

(b)Using a carriage service to groom a person under the age of 16, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) (CAN 10972/2023) (carriage service offence).

2․The maximum penalties for those offences are terms of imprisonment for 14 and 15 years respectively.

3․The particulars of the offending are that on and between 14 May 2023 and 15 July 2023, the offender used a carriage service to send messages to multiple people in an effort to engage in sexual acts with them.  Then, on 15 July 2023, the offender drove a 14-year-old girl, the victim, to his residence where he then had penile-vaginal intercourse with her.

Facts giving rise to the offences

4․The matter proceeded by way of a statement of agreed facts, from which the following summary has been taken. 

Sexual intercourse offence

5․The primary victim used a messaging based mobile phone application called ‘Wizz’, designed to talk to other randomised people of the same age bracket.  Her personal profile on the Wizz app had her age displayed as 14 years old.  The victim had autism spectrum disorder at a level two severity although this does not appear to have been known by the offender.

6․On 14 July 2023, when the offender was 21 years old, he used the application ‘Wizz’, displaying the age 14 years old on his profile.  The offender communicated with both the victim and one of her friends who was also using the Wizz app. He told the victim’s friend he was 17 years old.  The friend passed that information along to the victim, via a separate communication through the online application ‘Snapchat’.

7․The offender told the victim and her friend that he wanted to meet up with them to smoke pot.  They agreed.  The victim’s friend then declined to meet the offender at the last minute.  At about 1.00am on Saturday, 15 July 2023, the victim left her house to meet the offender.  She met the offender in the parking lot of the IGA supermarket in Holt in the ACT. The victim got into the offender’s car and they travelled together to his house.

8․During the car ride the offender offered the victim a vape.

9․The pair returned to the offender’s house and the offender told the victim to go into his bedroom.  From the offender’s bedroom they went into the bathroom as the offender told the victim he was going to have a cone.  The victim did not smoke any cannabis. The offender became ‘really touchy’ and started to kiss the victim’s neck and touch her hips.  The offender did not ask for her consent.  She froze and did not say anything.  The offender attempted to kiss the victim on the lips, however she declined by turning her head away. 

10․After the offender had smoked the cannabis, they both laid down on his bed and were watching cartoons on the television. The victim was tired and rolled over onto her side.  The offender then rolled over to face the same direction and began to hug the victim.  The victim felt the offender’s penis rubbing against her buttocks area.  The offender started to feel where the victim’s underwear was at the front of her vagina.  The victim felt scared and unable to do anything as she was frozen.  She felt hopeless, like the offender had full control of her. 

11․The victim eventually stated, “I don’t know if I’m okay with this.” The offender continued to touch her underwear and her vagina.  This went on for about 10 minutes.

12․The offender then took the victim by the shoulders and turned her onto her back.  She was not prepared for that to happen and felt “really scared”.  The offender removed his pants while still on top of the victim and removed the victim’s shorts and underwear.  The offender held the victim by her arms and wrists and put his penis inside the victim’s vagina, causing her to feel intense pain in her vagina.

13․The offender continued to engage in sexual intercourse with the victim while she was on her back and he was on top of her.  He did not use a condom.

14․The victim eventually felt the courage to say something and told the offender to stop.  The victim is unsure if the offender ejaculated but believes that he didn’t because he stopped when she told him to. The whole incident up to that point lasted around 20-30 minutes.

15․The offender laid in his bed when she expressed that she wanted to go home. The offender agreed to drive her home.

16․About 4.00am the offender dropped the victim at the Holt IGA carpark.  The car ride was a bit awkward as the victim did not want to talk to the offender as she felt violated.  The offender tried to “make out” with the victim but she just wanted to go home.  She got out of the car and walked home and called her parents to let her inside and went straight to bed.

17․When the victim woke up the next morning, her vagina felt really sore and she felt ashamed.  She sent her mother a text message saying that she had been raped, and that, “I want to die, because I feel so gross. I want to scrub off all my skin” and “I hate myself”.

18․The victim’s parents then called the police.

Carriage Service offence

19․Insofar as it relates to the primary victim, the conduct has already been set out above.  The offender also communicated with other girls between the ages of 13 and 15 via the Wizz app.  Their ages and geographic locations (by state or territory) were clearly displayed on the screen under their usernames. Examples of the messages with those other victims include statements of the following kind:

(a)“[How] you doing btw your hot”;

(b)“We should do something …I’m easy but like we should definitely make out”;

(c)“Can we chill together tonight?”

(d)“Up to you I’m easy but cuddling up together is definitely one of them … Maybe I am a pretty good kisser”;

(e)“We should hook up”;

(f)“I wish I was chilling with somebody tho that would be so good haha x”; and

(g)“I don’t know if you’re free tonight but if you are (winking kiss emoji), because I would love to chill with you tonight”.

Court’s sentencing task

20․The task of the Court is to sentence the offender by reference to the objectives of the legislation and sentencing purposes set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), or for the Commonwealth offence, Part 1B of the Crimes Act 1914 (Cth) (Crimes Act (Cth)). The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].

21․The mandatory relevant considerations are set out in s 33 of the Sentencing Act. These have been considered below to the extent relevant in the circumstances of this offender. A term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act.

22․To these may be added mandatory requirements under s 34A for a sexual offence against a child, in that the Court must sentence the offender in accordance with sentencing practice and sentencing patterns at the time of sentencing (not the time of the offence) and must not reduce the severity of a sentence it would otherwise have imposed because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence. Given the date of the offences here and the facts of how the offending occurred, neither of those statutory matters has any particular significance for the present sentence. The facts do not indicate that the offender’s good character assisted him in gaining access to the victim.

23․The carriage service offence is a federal offence. Similar considerations apply in that the sentence imposed must be of a severity appropriate in all the circumstances: s 16A(1) of the Crimes Act (Cth). Matters to be taken into account pursuant to s 16A(2) (to the extent that they are known and relevant) are referred to below.

Nature and circumstances of the offence (s 33(1)(a) of the Sentencing Act)

24․The requirement to consider the nature and circumstances of the offence proceeds upon a number of established principles, which have been set out in other authorities but are repeated here for the benefit of those involved in this particular proceeding.

Applicable principles

25․The evaluation of the nature and circumstances of the offence is “objective” in the sense that the Court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Subjective considerations, or matters personal to the offender, are separate considerations: McLeod v The Queen [2018] ACTCA 59 at [12].

26․The sentence which the Court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

27․Part of the Court’s assessment is to consider where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

28․As explained in DPP v JJ (No 2) [2024] ACTSC 74 at [45]-[56], that is a reference to the facts overall, including the offender’s circumstances. It is not necessary to expressly state a point on a hypothetical range: Miller at [22]; DPP v Moala (No 3) [2023] ACTSC 306 at [22]. Indeed, the Court of Appeal has repeatedly cautioned against the use of bare labels (that is, unaccompanied by consideration of the features informing such labels): Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]; R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24]; Laipato v The Queen [2020] ACTCA 35 at [156].

29․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The maximum penalties here for each of the offences, have been set out above. They indicate that these offences are each clearly serious.

Sexual offences against young people

30․Before dealing with each of the specific offences, it is helpful to put offences against people who are under 16 years of age into their proper context.  These are separate offences aimed at protecting a vulnerable section of society, people whose brains and bodies are still developing.  The prosecution drew attention to a number of cases dealing with victims who are children or young people, one of which was R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 (Summerfield), where Burns and Bromwich JJ discussed the court’s approach to cases where children and young people are victims of sexual offending at [57] (emphasis added):

A child may express a view or behave in a way that does or does not entail objecting in some way to sexual activity taking place with an adult, but the absence of objection cannot in any way constitute mitigation. It constitutes no more than an absence of aggravation and is ordinarily only relevant to rebut, or diminish the extent of, any such aggravation suggested by the Crown or that might otherwise be inferred. That is, given that a child cannot, directly, indirectly, or by any other circumstance, consent to sexual activity with an adult, it is a serious aggravation of an already very serious offence if the child also, in fact, objected to, or otherwise resisted, the sexual activity taking place. That conceptualisation also informs the approach to be taken to a child’s ostensible acquiescence to sexual activity with an adult by reason of such aggravating circumstances as pressure being placed upon, or inducement or encouragement of, a child to engage in that activity. All such acts by an adult to facilitate sexual activity with a child may be regarded, to a greater or lesser extent, as aggravating circumstances.

31․In R v CO [2017] ACTSC 391, Penfold J discussed the width of the protection at [22] (emphasis added):

Because a person under 16 cannot at law give consent to sexual intercourse or an act of indecency, the relevant offences can take a wide range of different forms, covering everything from a violent sexual activity inflicted by an adult stranger in frightening circumstances to less intrusive kinds of sexual activity between two young people engaged in, without resistance from and possibly even with enthusiasm by, the victim.

Sexual intercourse with a young person under the age of 16

32․The features informing the gravity of the conduct here include the following:

(a)There was one occurrence of sexual intercourse;

(b)The nature of the intercourse was penile-vaginal penetration, which is objectively viewed more seriously than digital penetration;

(c)The victim was 14;

(d)The offender knew the victim’s age, as it was displayed on the Wizz app;

(e)The conduct was not aggressive or extracted by physical restraint, although the victim did communicate her ambivalent state of mind, saying, “I don’t know if I’m okay with this”.  The offender continued to engage in sexual activity with the victim after she had said this;

(f)When the victim eventually said stop, the offender did indeed stop;

(g)The age gap between the offender and the victim was approximately seven years, which I accept is a significant gap in terms of life experience and maturity;

(h)There was premeditation involved, in that;

(i)the offender deliberately set his birth year as 2008 on the Wizz app in order to connect with persons between the age range of 13-15; and

(ii)Prior to the offence, the offender had trawled through the Wizz app commencing conversations with young people.  From the content of the messages, I accept the prosecution’s submission that the intention and modus operandi was the same.  However, I am also mindful that such conduct is the subject of the separate charge considered next, which has a higher maximum penalty, and accordingly, I have disregarded this aspect of the facts so as not to potentially trespass upon the principle set out in R v De Simoni (1981) 147 CLR 383 at 389.

33․The prosecution also relied on the fact that the victim lay silent and frozen while the offender manipulated her clothes and body. I do not consider that fact adds anything to the ambivalence that was already expressed by the victim, and which has already been considered as informing the gravity of the conduct.

34․Overall, I find that the conduct here falls far short of what might be the most serious conduct in terms of gravity.  It falls towards the lower end of conduct, but given there is a wide variety of conduct that may fall within this offence (for example, the offence extends to conduct such as digital penetration and offenders who are closer in age range) the offender properly did not submit that this was a less serious example of the offence.  

Using a carriage service to groom a person under the age of 16

35․The conduct in relation to this offence constituted a “rolled-up” charge.  This has been explained in the authorities as “a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty”: R v Jones [2004] VSCA 68 (Jones) at [13].

36․That informs the objective seriousness or criminality of the offence, because more than one episode of criminal conduct is involved.  The advantages for the offender include the restriction on the maximum penalty that can be imposed (applied only once across all the conduct the subject of the charge) and the complete concurrence of sentences which might otherwise have been imposed separately: see Johnston v The Queen [2017] NSWCCA 53 (Johnston) at [68]-[69] and the authorities there-cited. This may have a bearing on accumulation and concurrency (discussed below): R v De Leeuw [2015] NSWCCA 183 at [116], cited in R v Forrest (No 2) [2017] ACTSC 83 at [164].

37․The explanation and approach described in Jones and Johnston have been regularly cited in this jurisdiction, with examples including DPP v Gilbey; DPP v Goodwin [2024] ACTSC 265 at [29] and R v Kennedy [2021] ACTSC 80 at [1].

38․In relation to the carriage offence itself, Murrell CJ and Mossop J discussed the wide range of activity that may constitute ‘grooming’ in R v Ralston [2020] ACTCA 47 (Ralston) at [14]:

Unlike the offence under s 474.26 of the Criminal Code, which involves an intention “to procure” a child to engage in sexual activity and carries a maximum penalty of 15 years’ imprisonment, an offence of grooming is established by showing an intent to “make it easier to procure”. Section 474.27 was amended in 2010 to remove a requirement that the grooming communications be indecent. The associated Explanatory Memorandum stated (at 92):

The practice of grooming encompasses a wide range of activity designed to build a relationship of trust with the child for the purposes of later sexually exploiting the child. The content of communications between the offender and the child may not always be indecent – the grooming process is just as likely to involve platonic, “innocent” exchanges.

39․Here, as the offence of grooming itself necessarily involves pre-meditation as part of the intentional element, that cannot be an aggravating feature.  The conduct occurred intermittently, over a period of time (14 May to 15 July 2023) and was not particularly sophisticated, with what might be described as a scattergun approach in relatively brief communications with a number of different girls on the Wizz app, of ages which ranged between 13 and 15 years old, according to what was displayed under each of their names.  Certainly, there was no deliberate manipulation or attempt to coercively control any of the victims, but the offender did lie about his age.  Telling a 14-year-old girl that you are 17 and can drive is different to telling her you are 21, with all the maturity and important developmental life stages that those intervening years bring. 

40․There was reference to sexual activity in the form of kissing and the desire to cuddle up or “hook up”.  Depending on an individual’s interpretation of “chill out” in modern parlance, there may have been an occasional implied intention to engage in sexual intercourse, although I do not think the evidence went that far beyond reasonable doubt. However, that is not necessarily significant.  As the NSW Court of Criminal Appeal pointed out in Tector  v The Queen [2008] NSWCCA 151; 186 A Crim R 133 at [96]-[97] (cited by Taylor J in R v Lidden [2024] ACTSC 297 (Lidden) at [34]-[35]), a communication seeking a lower level of sexual activity may be made in order to disguise an existing intention to engage in a more serious level of sexual activity than that proposed.

41․Those features of the offending (including its rolled-up nature) mean that it was not at the lowest end of seriousness, but it remains well below the medium level of objective seriousness.

Plea of guilty (s 35(3) of the Sentencing Act)

42․The offender entered pleas of guilty on 14 August 2023 in respect of the sexual intercourse offence and 15 May 2024 in respect of the carriage service offence, before the provision of the brief of evidence. 

43․The principles guiding the exercise of the Court’s discretion to apply a discount in respect of a guilty plea have recently been set out in Robertson v DPP [2024] ACTCA 26 at [23]-[26] and I will apply those principles without repeating them.

44․It was accepted by the prosecution that the pleas had significant utilitarian value and, in the case of the sexual intercourse offence, that the plea of guilty was entered at the earliest opportunity. Having considered the timing of the pleas, the effect of the offence on the primary victim and the seriousness of the offence as found above, I will impose a lesser penalty, with the applicable discount being 25% in respect of each offence.

Victim impact (s 33(1)(f) of the Sentencing Act)

45․The primary victim’s mother prepared a victim impact statement.  She explained that the offence changed her and her daughter’s life forever.  She spoke of her inability to protect her child and the increased security measures she has taken.  She worries constantly about her daughter’s safety online and in reality.  Her response to what has occurred has affected her relationship with the victim and she no longer wants to live at home.  Her daughter was once confident and happy.  She is now miserable and has lost all self-respect.  She abuses drugs and alcohol to get through the day.  She talks frequently about how she no longer wants to be alive.  There is a loss of trust, a loss of innocence and the mother described her daughter as, “now just a scared heartbroken little girl trying to numb her pain in a big bad world”.  The offence has started a spiral of self-destruction for her daughter, and she is helpless to bring her daughter out of that state.

46․The victim’s response and that of her mother emphasises why the offences in question have maximum penalties of 14 and 15 years.  The consequences of such conduct can destroy lives.  The sentence to be imposed must recognise the harm, as outlined, but nothing said in these reasons will turn back time for this victim and her mother and it will be up to them to privately rebuild with whatever support network can wrap around them to improve their situation, so that the victim’s current misery is not permanent. 

Remorse (s 33(1)(w) of the Sentencing Act)

47․I accept the offender was genuinely remorseful, which is a significant factor influencing the assessment of an offender’s prospects for rehabilitation: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. The offender accepted full responsibility for his actions. He remains emotional and distressed about what has occurred and has sufficient insight into the harm he caused to the primary victim and her family.

48․This is intertwined with the offender’s appreciation of the impact of the offences on his own family.  He clearly feels shame and disgrace.  The offender’s mother gave evidence before the Court and the contents of her statement were indicative of the ripple-like effect of the offender’s conduct on his family.  

Subjective circumstances of the offending (s 33(1)(m) of the Sentencing Act)

49․The offender is now 23 years old.  He is fortunate to have a supportive family including his extended family and is able to undertake employment through their support.

50․Medical evidence was before the Court explaining the very strong subjective circumstances in relation to this offender.  The expert psychologist was also cross-examined. I accept his evidence. 

51․It is difficult to strike a balance between disclosing sufficient medical information to explain the offender’s circumstances and the significant influence they will have on the sentence to be imposed, and the maintenance of the offender’s private health information.

52․Generally, the offender has a range of complex medical conditions ranging from autism (level 3) and developmental disabilities, through to cyclothymic disorder and bipolar, overlayed by anxiety, depression and traumatic stress disorder.  A number of the offender’s medical conditions date back to a traumatic birth, and he has required very substantial support since his early years.  The history of psychologists and other health professionals, such as speech pathologists, physiotherapists, chiropractors and occupational therapists was referred to in the expert psychologist report.

53․As an indicator of the level of the offender’s impairment, the evidence established that his verbal comprehension is in the 7^th percentile for his age, with a severe impairment affecting his perception.  His learning and memory, attention and literacy are at a year 6 to year 8 level (that is, the level of a 14- to 16- year-old).

54․The expert evidence was largely corroborated by the sworn evidence of the offender’s mother.  The exhaustion for parents in her position, who parent with unconditional love and an unceasing devotion to improving her son’s lot in life, was patent in the evidence she gave.  She is unquestionably the strongest pro-social support that this offender has along with the offender’s father and grandparents, and the evidence was that the family network continues to work very hard to raise him up. 

55․This brings into consideration the application of Verdins principles, derived from R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269, which were explained at [32] (references omitted):

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

56․The application of the above principles was approved in R v Guode [2020] HCA 8; 267 CLR 141 at [8]. It is well-established that the principles enunciated in Verdins apply to the sentencing regime in the ACT: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 (Monfries) at [64]-[66].

57․All six of the principles are relevant to the offender’s circumstances here.  The evidence – including that obtained under cross-examination – persuaded me that his cognitive impairment was causally connected to the offending.  This included first, that he was not functioning at the maturity level of an ordinary 21-year-old and that he has apparently sought connections with girls online who were at his level of functioning.  Second, his impairment caused (on the balance of probabilities) an inability to perceive what was being communicated by the victim verbally and through her frozen body language. As has been said, the victim could in no way consent to sexual intercourse, however her communications and discomfort with the situation in which she was faced was relevant to the objective seriousness set out above.  These impact on the offender’s moral culpability, which I accept is reduced, albeit not eliminated, and that less weight should be given to denunciation as a consequence.

58․The offender’s conditions also have a bearing on the kind of sentence that is imposed and the manner in which it is served. I accept that a sentence of imprisonment served by way of fulltime custody will weigh more heavily on the offender (relevant under s 33(1)(r) of the Sentencing Act), for the reasons explained in the expert psychological evidence, which are unnecessary to detail here.  Because the sentence will be more onerous for the offender, the length of the prison term or the conditions under which it is served may be reduced: Monfries at [64] and the authorities there-cited.

59․As a result, the objectives of general and specific deterrence should be substantially moderated in respect of this offender.  He is not an appropriate vehicle through which to achieve general deterrence.

Criminal history (s 33(1)(m) of the Sentencing Act)

60․The offender has no criminal history and is entitled to significant leniency in respect of these offences, which partially overlap in terms of the timing and identity of the victim.  Having regard to the reports and the degree of remorse expressed, I am prepared to find that this was isolated behaviour that will never be repeated. 

Time in Custody

61․The offender has spent 1 day in custody in relation to the charges and this will be taken into account in the sentence to be imposed, not by backdating but by shortening the end date by 1 day, through an extra day of concurrency.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

62․I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]. This principle applies with particular force in a smaller jurisdiction, where single judge decisions imposing terms of imprisonment may otherwise carry greater numerical significance than they would otherwise deserve in discerning any sentencing practice or pattern. The sentences that are discussed below are focussed on principles that may have a bearing on the current sentences to be imposed.

63․In R v Horton-Hegarty [2018] ACTCA 22 (Horton-Hegarty), the relevant circumstances involved penile-vaginal intercourse on three separate occasions, with the first of those rolled up to include digital penetration and oral sex.  The offender was 21 at the time of offending and the victim was 14.  The offending was found (at [33]) to fall at the lower end of the range of objective seriousness.  The offender had no criminal history, a supportive family and received discounts of 25% for guilty pleas.  Sentences of 15 months’ imprisonment were imposed for each of the offences relevant to the present case.  Those sentences were structured with partial accumulation and each sentence was suspended with immediate effect.  The offender was required to enter into a good behaviour order and to undertake community service.

64․In Horton-Hegarty, Elkaim J was particularly influenced (see [48]) by three principles applying to young offenders, discussed in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 at [34]-[36]. Briefly, they were that:

(a)young offenders are immature and “more prone to ill-considered or rash decisions”;

(b)there is potential for young offenders to be redeemed and rehabilitated, which “is one of the great objectives of the criminal law”; and

(c)courts sentencing young offenders “are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation”, being exposure to corrupting influences, thereby defeating the very purpose for which punishment is imposed. 

65․His Honour treated the offender before him, who was 21 years of age, as coming within the bounds of the above principles (see [49]).  Due to the present offender’s mental impairment, the same principles apply with greater weight to the present offender and warrant prioritising rehabilitation.

66․In Summerfield, which was a Crown appeal, the relevant offending involved multiple instances of penile-vaginal penetration over a number of days and with two victims.  The offender was 18 years old at the time of the offences.  The victims were 13 and 15 respectively.  The offending in respect of the 13-year-old was found to be at the mid-range of objective seriousness and involved the offender expressly seeking to make the victim pregnant, which occurred.  It is not comparable to the present case.  The offending involving the 15-year-old victim resulted at first instance in two separate sentences of imprisonment being imposed, each of full-time custody for 6 months.  The Court of Appeal found (at [115]) that, viewed in isolation, such sentences may have been manifestly inadequate but that they must instead be viewed as an outcome arrived at after the application of totality principles. Accordingly, while acknowledging their leniency, they were undisturbed on appeal.

67․In DPP v Doughty [2023] ACTSC 397 (Doughty), the offender was sentenced, among other things, for four separate offences of sexual intercourse with a young person under 16 years although the conduct involved was objectively significantly more serious.  Apart from Summerfield (discussed above), the cases considered by Taylor J (at [109]-[112]) all involved more serious offending than that under consideration here. The offender’s moral culpability was found to be high with descriptions of the offender’s behaviour being callous and predatory in relation to his various victims. The offender was also on conditional liberty in respect of one of the offences. Following discounts of 20% and 25% for guilty pleas, sentences of full-time imprisonment were imposed. For the relevant offences under consideration here, the sentences of imprisonment were between 2 years and 3 months, and 2 years and 9 months and 18 days.

68․Taylor J in Doughty similarly applied Azzopardi principles to an offender who was between 18 and 24 years of age at the time of his offending, stating at [101]:

That the offender was a young man at the time his offending began and to a degree, as the offending continued, should not see rehabilitation overwhelm the other purposes of sentencing that must feature prominently in this sentencing exercise. These are offences of considerable gravity, the circumstances of which require a particular emphasis on general deterrence, punishment and recognition of harm such that the mitigatory effects of his youth should be reduced though not, I accept, entirely extinguished: see Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 and KT v R [2008] NSWCCA 51; 2008 A Crim R 112.

69․The case that is of more comparable assistance is R v Kamara [2016] ACTSC 294, where the offender was sentenced in respect of a number of offences, including 3 counts of sexual intercourse with a person under the age of 16, and 1 count of using a carriage service to groom a person under the age of 16 years. The victim was 15 at the time and the offender was almost 20. The offender had no prior criminal history and mitigating subjective circumstances. Following a 15% discount for pleas of guilty, sentences of 10 months and 6 days were imposed for each count of sexual intercourse, and of 7 months and 20 days for using a carriage service to procure sexual activity with a person under 16 years. They were each immediately suspended with a good behaviour order of 18 months imposed.

70․Other cases to which the Court was referred included DPP v Gleeson [2022] ACTSC 309 and DPP v Gleeson (No 2) [2022] ACTSC 311; R v Garay (No 4) [2022] ACTSC 138; R v Whittaker [2021] ACTSC 189 and R v QI [2016] ACTSC 188 (QI).  All of those cases involved a higher degree of moral culpability and objective seriousness than the offending here.

71․In respect of the carriage service offence, I have borne in mind that since cases such as Ralston were heard, the maximum penalty increased (in June 2020) from 12 years to 15 years.  Ralston involved more serious offending with a more significant age gap, but I have had regard to that decision and to the summary of comparable cases by Loukas-Karlsson J at [142].

72․The most recent decision in this Court involving s 474.27(1) of the Criminal Code is that of Lidden.  The conduct involved a 40-year-old offender and no actual child victim (although that is not a mitigating factor: Lidden at [39]). However, it did involve conduct found to be of a low level of objective seriousness. I have considered the case more for its similar application of the Verdins principles in the context of an autism disorder (which does not appear to have been as severe as that in the present case) and the pro-social family factors which similarly supported the offender’s employment in that case. Taylor J referred to a number of sentencing decisions at [70], to which I have also had regard, ultimately imposing a fully-suspended sentence of imprisonment of 15 months on the basis that there were exceptional circumstances, with a recognizance release order of 2 years’ duration made upon security of $250 being paid.  The prosecution did not submit against a fully-suspended sentence.

Is the threshold for a sentence of imprisonment crossed?

73․In QI, Murrell CJ cited a number of authorities before referring to sentencing patterns for the sexual intercourse offence at [46] (emphasis added):

The pattern for cases of this type which are of substantial objective seriousness is that a sentence of imprisonment is usually considered to be the only appropriate sentence. Not infrequently, an offender is required to serve part of the sentence by way of full-time imprisonment and the remainder is suspended. Having regard to the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT)…, I consider this to be the appropriate way to proceed in this case.

74․While general deterrence is usually a very important sentencing consideration in matters of this type, I have found that this case is not an appropriate vehicle in which to give significant weight to general deterrence and denunciation.  Even so, the nature of the offence itself in relation to the sexual intercourse that occurred and the recognition of harm to the victim means that no other sentence than one of imprisonment is appropriate.

75․With regard to the carriage service offence, being the federal offence, s 17A(1) of the Crimes Act (Cth) applies in that a sentence of imprisonment remains a sentence of last resort.  However, this offence falls within the definition of a Commonwealth child sex offence.  Drawing from the decision of Lidden at [80], the effect of amendments specific to Commonwealth child sex offences is set out in R v Bredal [2024] NSWCCA 75 at [57] (emphasis added):

The result is that, in sentencing for a Commonwealth child sex offence, when the s 17A threshold is crossed and a sentence of imprisonment is consequently to be imposed, and that sentence does not exceed 3 years, and the Court does not engage in an alternative to full-time imprisonment such as an ICO, there is a legislative presumption that, at least, some part of that sentence should be served in actual custody.

76․Again, because the sentence must be of an appropriate severity in all the circumstances, even taking into account the strong mitigating circumstances of this case, a term of imprisonment is the only appropriate outcome. However, it is one where an alternative to full-time imprisonment such as an intensive correction order (ICO) is available as an additional sentencing alternative available for Commonwealth offences pursuant to s 20AB of the Crimes Act (Cth). The question is whether the Court should engage in that alternative.

Disposition

77․The justice system, and the sentencing objectives within that system, is flexible enough to accommodate adults with cognitive impairment and those with primary care responsibilities for them.  The prosecution in this case submitted that an intensive correction order was the more appropriate means of sentence in this case, and following an adjournment to facilitate that option, the offender has now been assessed as suitable for an ICO. 

78․If the carriage service offence was the only offence under consideration, as was the case in Lidden, there may well have been a case for the Court to find exceptional circumstances (as to which see s 20(1)(b)(iii) of the Crimes Act (Cth) and the discussion in Lidden at [81] and following). But here, the Court is sentencing for two offences, and the legislation does not permit an ICO in combination with a suspended sentence. Given the victim impact in respect of the sexual intercourse offence, and the requirement for proportionality, a fully-suspended sentence is not appropriate, in my view.

79․By contrast, the imposition of an ICO does not require a finding that exceptional circumstances exist.  It was described in Lidden at [90] as a regime of supervision that may be “intense and necessarily demanding”. The offender here has significant mental health challenges and has been assessed as potentially benefiting from targeted intervention as to his “psychological concerns”, and it was recommended that if an ICO was made, that he engage in offence-specific treatment. The report provided an example of such treatment being psychological assistance as to the interpretation of consent within intimate relationships.

80․I consider that the imposition of an ICO still recognises the seriousness of the offences, but is better able to accommodate the offender’s particular circumstances, the objectives of rehabilitation and the principles applying in respect of Verdins, noting the findings that I have made above about them and the contents of the ICO assessment.

81․As to totality considerations, and the partial overlapping circumstances in relation to the primary victim of the sexual intercourse offence, a degree of concurrency is appropriate and is able to comprehend the criminality of the carriage service offence (to the extent that there was a common victim and the fact that the grooming and sexual intercourse might properly be seen as a continuing course of conduct).  However, recognising the separate victims in respect of the carriage service offence means that there will also be partial accumulation.

82․In relation to the carriage service offence, the appropriate term of imprisonment is 13 months and 11 days, reduced by 25% on account of the guilty plea to 10 months.

83․In relation to the sexual intercourse offence, the appropriate term of imprisonment is 12 months, reduced by 25% on account of the guilty plea to 9 months.

84․Having regard to the totality considerations outlined above, the sentences will have a substantial degree of concurrency to reflect the fact that there was a course of conduct in relation to the same victim.  However, they will also be partially cumulative, to reflect the separate victims in relation to the carriage service offence and the give effect to the separate criminality.

Orders

85․The orders of the Court are:

(1)For the offence of engaging in sexual intercourse with a young person under the age of 16, contrary to s 55(3) of the Crimes Act 1900 (ACT) (CAN 7099/2023) the offender is convicted and sentenced to a term of imprisonment of 10 months (reduced from 13 months and 11 days on account of his guilty plea), to be served by way of an Intensive Correction Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), to commence on 27 November 2024 and conclude on 26 September 2025, with the following conditions imposed under ss 11(4) and 11(5) of the Sentencing Act:

(a)The core conditions pursuant to s 42 of the Crimes (Sentence Administration) Act 2005 (ACT);

(b)That the offender report to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City by 4:00pm on Friday 29 November 2024;

(c)That the offender attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the Director-General, for such duration and intensity as considered appropriate by the delegate of the relevant Director-General administering the sentence; and

(d)That the offender undertake any other medical treatment and supervision as directed by the Director-General;

(2)For the offence of using a carriage service to groom a person under the age of 16, contrary to s 474.27(1) of the Criminal Code 1995 (Cth) (CAN 10972/2023), the offender is convicted and sentenced to a term of imprisonment of 9 months (reduced from 12 months on account of his guilty plea) to be served by way of an Intensive Correction Order pursuant to s 20AB of the Crimes Act 1914 (Cth) on the conditions set out in order 1, to commence on 14 March 2025 and conclude on 13 December 2025.

(3)The total effective term of imprisonment is 1 year and 17 days.

I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam.

Associate:

Date: 27 November 2024