Milner v A W
[2014] ACTSC 231
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Milner v A W |
Citation: | [2014] ACTSC 231 |
Hearing Date(s): | 2 July 2014 |
DecisionDate: | 2 July 2014 |
Before: | Murrell CJ |
Decision: | Appeal dismissed with costs |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – appeal against sentence – whether sentence manifestly inadequacy – non-conviction order – young person – registration as sex offender |
Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT) |
Cases Cited: | R v CV [2013] ACTCA 22 R v KNL (2005) 154 A Crim R 268 |
Parties: | Giuliana Milner (Appellant) A W (Respondent) |
Representation: | Counsel: Mr J White ( Appellant) Mr K Archer ( Respondent) |
| Solicitors: ACT Director of Public Prosecutions ( Appellant) Kamy Saeedi Lawyers ( Respondent) | |
File Number(s): | SCA 12 of 2014 |
Decision under appeal: | Court: Children’s Court of the ACT Before: Magistrate Morrison Date of Decision: 30 January 2014 Case Title: Milner v AW Court File Number(s): CH 516 of 2013 |
MURRELL CJ:
Introduction
The Crown appeals against sentences imposed by the Magistrates Court in relation to two matters. On 30 January 2014, the Magistrates Court sentenced the respondent for an offence of committing an act of indecency on a girl under 16 and an offence of having sexual intercourse with a girl aged between 10 and 16 years contrary to s 55 of the Crimes Act1900 (ACT) (Crimes Act). In doing so, the Magistrates Court took into account an additional offence of sending pornographic material to a young person via the internet.
In the Supreme Court, the maximum available penalty for the offence of act of indecency is 10 years’ imprisonment and for the offence of having sexual intercourse with a person aged between 10 and 16 years the maximum available penalty is 14 years’ imprisonment.
The Magistrates Court proceeded under s 17 of the Crimes Act, imposing a non-conviction order and a good behaviour order of two years which subjected the respondent to the supervision of Youth Justice and required him to undertake appropriate education and counselling.
The grounds of the appeal are:
(a)The sentences were manifestly inadequate. Somewhat inappropriately, this ground referred to matters of weight, asserting that:
(i)the Magistrate erred in failing to give sufficient weight to the objective seriousness of the offences;
(ii)the Magistrate erred in failing to give adequate weight to the aggravating feature of lack of consent of the victim;
(iii)the Magistrate erred in failing to give adequate weight to the premeditated nature of the offences and the respondent’s course of conduct;
(iv)the Magistrate erred in giving too much weight to the fact that, if convicted, the respondent would become a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) (Child Sex Offenders Act).
(b)The Magistrate erred in law by, in effect, reasoning backwards from a position that, as a good behaviour order was the appropriate outcome, a conviction was not required.
Background facts
The offender was 15 years and 11 months old at the date of the offences. He was in Year 10 at school. The victim was 13 years and nine months old and was in Year 8 at the same school. There was an adolescent sexual interest between the two young people. The offences involved the respondent forcibly and repeatedly kissing the victim, digitally penetrating the victim (the sexual intercourse) and an incident where the respondent removed his penis and asked the victim to rub it. She declined. The additional offence involved the respondent transmitting two images of his penis via Facebook to the victim.
The decision at first instance
As the appellant concedes, the Magistrate gave very careful consideration to the relevant matters in his reasons for decision. His Honour carefully balanced many considerations. He referred to the relevant maximum penalties. He noted that all of the offences were serious. He noted that there was consensual communication of a sexual nature between the victim and the respondent but that the conduct the subject of the charges was non-consensual. He considered the age difference between the respondent and the victim. He rejected the prosecution’s attempt to characterise the respondent’s behaviour as “grooming behaviour” or as “luring” the victim. He noted that, although the victim was apparently attracted to the respondent, she retained her independent judgment, as evidenced by the fact that she verbally and physically resisted the approaches of the respondent rather than succumbing to them. The Magistrate noted that the victim was not overwhelmed in the sense of being psychologically overpowered by the respondent.
The Magistrate was quite entitled to reject the submission that the respondent’s conduct was “premeditated” in the sense that there was an evil intent and, inferentially, to reject the submission (put on the appeal) that the respondent deliberately “buttered up” the victim through a campaign designed to emotionally overpower her into succumbing to his sexual advances.
After considering all the relevant objective circumstances, the Magistrate characterised the respondent’s behaviour as “at the lower end of the range of objective seriousness”, but he did not characterise it as being trivial.
In finding that the respondent’s behaviour was at the lower end of the range of objective seriousness, his Honour took into account that (as his Honour put it) no “violent force” was used against the victim. I accept the appellant’s submission that the idea that violent force is usually associated with non-consensual conduct is old-fashioned. It is well accepted that victims may be overpowered by emotional and psychological factors; there does not need to be violence for a victim to be effectively overpowered.
The Magistrate considered all the relevant subjective circumstances, including the fact that the respondent had no prior criminal history. The respondent came from a dysfunctional background. There was a history of domestic violence in his family and the family had had a long-term involvement with Care and Protection Services. The respondent’s mental health had been investigated by Care and Protection Services. The Magistrate accepted that the respondent was genuinely remorseful for his conduct. His Honour took into account that the respondent had been on strict bail conditions which had had amounted to a significant penalty, as had the criminal justice process generally.
The Magistrate considered the very significant impact of the offences on the victim.
The reasoning process in which his Honour engaged when determining the appropriate penalty appears at pages 9 to 11 of his Honour’s decision. On page 9, his Honour stated that “the court must first be satisfied that a sentence of imprisonment is the only appropriate sentence”. In that context, his Honour referred to s 133G of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). His Honour noted that the “realistic sentencing options were limited to the imposition of good behaviour orders.”
His Honour then turned to consider whether it was appropriate to impose a non-conviction order under s 17 of the Sentencing Act in association with a good behaviour order. His Honour weighed up various matters that he considered to be relevant to whether a conviction was recorded and noted at page 10 that:
[O]ne consequence of (a conviction being recorded) is that (the respondent would) become a registrable person under the Crimes (Child Sex Offenders) Act 2005.
His Honour referred to the impact that such registration may have upon the respondent, considering his age and the stage of his development. His Honour then made the following comments:
Given the conclusion I’ve reached about imprisonment, to record a conviction against you would not open up any greater range of appropriate sentencing options. I am not convinced that recording a conviction would have the effect of greater specific or general deterrence. Doing so would, however, impose greater punishment on you and would demonstrate denunciation of your conduct. It may also have a detrimental effect on your rehabilitation by foreclosing some rehabilitation enhancing opportunity such as certain types of employment. Your conduct towards the complainant was brutish and extremely distressing for her. Its seriousness is not to be underestimated.
And then:
In the end result, I am not satisfied that the need for any greater punishment or denunciation makes it necessary to also record a conviction.
If this passage was considered in isolation, then the observations of the Crown would be warranted; his Honour would have first decided to impose a good behaviour order, then, proceeding from a starting point that there would be no conviction, weighed up whether a conviction would have any benefit for the justice system and decided against that outcome. That would have been an erroneous way in which to reason. However, when one looks at the reasoning of his Honour as a whole, it was at a much earlier point in the reasoning process that his Honour considered whether a conviction should be recorded.
There is no debate that his Honour was entitled to take into account the consequences for the respondent of registration under the Child Sex Offenders Act. It is plain from the decision in R v CV [2013] ACTCA 22 (CV) that such a matter is at least “not irrelevant”: at [54]. The comment at [54] is not a throwaway line but a conclusion following consideration by the court, commencing at [45]. In determining that it was not irrelevant, the Court of Appeal had regard to the New South Wales decision in R v KNL (2005) 154 A Crim R 268 (KNL). At [48] in CV, the court noted that KNL did not emphatically reject consideration of registration as an aspect of extra-curial punishment.
The Magistrate considered the appropriateness of a non-conviction order under s 17 in the context of considering all the relevant sentencing purposes, including specific deterrence, general deterrence, punishment and denunciation. However, his Honour quite rightly put great emphasis upon rehabilitation because he was required to do so pursuant to the provisions of the Sentencing Act, particularly s 133C which provides:
Young offenders – purposes of sentencing
(1)Despite section 7 (2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in s 7 (1).
(2)Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice.
I note that s 133D refers to additional relevant considerations in relation to young offenders, being matters of culpability having regard to maturity, the young offender’s state of development and the past and present family circumstances of the young offender. In this case, the Magistrate did not specifically refer to s 133C and 133D, but he noted matters that are relevant under those provisions.
Disposal of the appeal
As the Magistrate said, “in the end” he was not satisfied that sentencing purposes such as punishment and denunciation made it “necessary to record a conviction”. Perhaps that finding was inelegantly articulated, but his Honour’s intent in making that statement is quite clear. That is, having weighed up all the relevant sentencing purposes, and taking into account the fact that he was sentencing a young offender (where rehabilitation is generally the dominant and guiding sentencing purpose), he considered it inappropriate to record a conviction. On an appeal of this nature, the Court should not be unduly pedantic or precious in interpreting the reasoning of the sentencing court.
I accept the general principles that the appellant advances, including the proposition that a sentencing court must not reason from a starting point that there will be no conviction. Prima facie, a finding of guilt will result in a conviction. It is also accepted that provisions such as s 17 cannot be used to subvert legislative intent. I accept that it is relevant for the Court to consider decisions made in comparable cases. To that end, the appellant provided the Court with several cases that were said to be comparable. The cases were, in some respects, comparable and, as is inevitably the case, in other respects they were not comparable. Importantly, the matters to which the Court was referred involved an offender who was 17 or 18 years old at the date of the relevant offence. The respondent was 15 years and 11 months old at the date of the offences. Relatively small periods of time can impact greatly on the level of maturity and associated culpability of a young person. I accept the submission that the age differential between the offender and victim was of no great moment in the present case as the conduct in question was non-consensual.
Essentially, the appellant’s arguments were twofold. First, the Magistrate erred in the weight that he gave to the objective seriousness of the offence and to the admittedly relevant consideration of registration. Second, the Magistrate engaged in backward reasoning, where the starting point was non-conviction rather than conviction.
In relation to the latter point, as I have already indicated, although his Honour could have expressed himself more clearly, when his decision is read as a whole it is plain that he did not engage in backward reasoning.
In relation to the arguments about weight, it is immaterial that I or others sitting at first instance may have accorded different weight to the various considerations that his Honour took into account. His Honour was entitled to accord them the weight that he considered appropriate and to exercise his discretion in the way in which he did. The result, was lenient, but I am not satisfied that it was outside the available sentencing range.
The appeal is dismissed. The appellant is to pay the respondent’s costs.
| I certify that the preceding twenty four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell Associate: Date: |
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